Delhi District Court
Workman vs . on 25 February, 2020
IN THE COURT OF SH. CHANDRA GUPTA:
PRESIDING OFFICER INDUSTRIAL TRIBUNALI
ROUSE AVENUE COURTS, NEW DELHI
Ref. No. : F.24(68)/ND/109/2007/Lab./936
Dated: 25.06.2013
I. D. No.: 754/16 (Old No. 127/13)
Workman
Shri Surta Singh
S/o Late Sh. Fauiza Singh
as represented by MCD General Mazdoor Union
C/o Room no. 95, Barrack No. 1/10,
Jam Nagar House, New Delhi110 011.
Vs.
Management
M/s Municipal Corporation of Delhi
through its Commissioner,
Town Hall, Chandni Chowk,
Delhi110006, now after trifurcation it is known as
South Delhi Municipal Corporation
9th Floor, Civic Centre,
Minto Road, New Delhi110 002.
Date of institution : 12.07.2013
Date of reserving award : 28.01.2020
Date of award : 25.02.2020
AWARD
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 following terms of reference:
I.D. No 754/16 Pages 1 of 37
"Whether Shri Surta Singh S/o Late Sh. Fauiza
Singh, Mason is entitled to the pay scale of Rs.950
1500 w.e.f. 01.02.1993, revised from time to time
including the proper pay scale of 1st A.C.P. w.e.f. 9th
August, 1999 along with all consequential benefits
and if so, to what relief is he entitled and what
directions are necessary in this respect?"
2. Statement of claim has been filed by the workman, on record.
Thereafter, vide order dated 03.12.2015 of Ld. Predecessor of this Tribunal,
an application of the workman for amendment of statement of claim was
allowed and amended Statement of claim was taken, on record.
In the amended Statement of claim, it is stated that Sh. Surta
Singh S/o Late Sh. Fauiza Singh was initially appointed as work charge
employee in a regular pay scale in DDA as 'Mason' w.e.f. 17.07.1984 by the
management of DDA and also modified the pay scale of Mason to Rs.950
201150EB251400/ in place of Rs.225350/; that his services were
transferred to MCD w.e.f. 01.02.1993 and he is entitled the pay scale of
Rs.9501500/ w.e.f. 01.02.1993 revised from time to time including proper
pay scale of 1st ACP w.e.f. 09.08.1999 in the pay scale of Rs.40006000/
alongwith all consequential benefits and after completion of 24 years of
service i.e. w.e.f. 16.07.2008 in the pay scale of Rs.50008000/ as he is
entitled the pay scale as provided to the DDA's Staff w.e.f. 17.07.1984 vide
Office Order No. 366 and has been transferred w.e.f. 01.02.1993 from DDA
and posted at Rajouri Garden under Karol Bagh Zone of MCD; that he has
been granted lower pay scale of a semi skilled worker of Rs.8101150
instead of Rs.9501400 revised from time to time on work of skilled nature
I.D. No 754/16 Pages 2 of 37
of job; that the pay scale of Rs.9501400/ has been merged with Rs.950
1500/ and after implementation of 6 th Pay Commission the pay scale of
Rs.9501400/ and Rs.9501500/ has been merged and granted new pay
scale of Rs.30504590/; that the details of workman are mentioned as under:
Name Father's Name Date of Initial Date of transfer to
appointment on MCD on same
regular Mason under condition of service
DDA
Surta Singh Fauiza Singh 17.07.1984 01.01.1993 as Mason
that in DDA the Mason, who performed regular service of more than 12
years and is entitled 1st ACP in the pay scale of Rs.40006000/ and 2nd ACP
after completion of 24 years in the pay scale of Rs.50001508000 but in
MCD he was paid 1st ACP in the pay scale of Rs.32004900 instead of
Rs.40006000/ and 2nd ACP in the pay scale of Rs.40006000/ instead of
Rs.50008000/; that he is entitled the ACP as granted in DDA; that as per
the terms & conditions of the transfer of the staff from DDA should get the
benefit of ACP scheme as adopted by the DDA and at parity with the
counterparts working in DDA; that a comprehensive chart of pay scale of
Mason, 1st ACP and 2nd ACP has been granted by DDA and the same is
given as under:
Post Pay Scale before Pay Scale after 12 Pay Scale after
ACP (01.01.1996) years as 1st ACP completion of 24
years - 2nd ACP
MCD DDA MCD DDA MCD DDA
Mason 3050 3050 3200 4000 4000 5000
4590 4590 4900 6000 6000 8000
I.D. No 754/16 Pages 3 of 37
that the management of MCD vide its order No.
DOH/DDH(HQ.)/NDMC/2013/398 dated 17.09.2013 has issued the order of
implementation dated 01.03.2013 passed by the Hon'ble High Court of Delhi
at New Delhi in Writ Petition (C) No. 2621/2010 titled as MCD Vs. Ram
Avtar & Ors. and Writ Petition (C) No. 2671/2010 titled as MCD Vs.
Virender Singh & Ors.; that operative para 4 of the judgment is as under:
"However, on construing and considering the
provisions of clause 6 of the terms and conditions of
transfer, it is apparent that the private respondents
were entitled to the same terms and conditions of service as they would have had if they had continued with DDA unless and until such tenure, renumeration and terms and conditions were duly altered by the MCD. Admittedly there has been no such alteration of the terms and conditions of service. Consequently, the private respondents would be entitled to be treated as if they had continued with DDA and, therefore, all the benefits that would have been derived by them had they continued with the DDA would be available to them. This is exactly what the Tribunal has decided, as would be apparent from the following extract:
6. On careful consideration of the rival contention of the parties, in our considered view, on transfer of applicants from DDA to MCD what has been protected and safeguarded is not the terms and conditions, as existed but also on the premise that the same would be admissible if they had continued to be in DDA. This clearly establishes that even the future benefits are also protected in DDA. The only exception to deny is when the terms and conditions are altered by the Corporation which have not been altered. As we find that in DDA the higher pay scale, the same having been lowered down, without any alteration of service conditions, the conditions are disadvantageous to the I.D. No 754/16 Pages 4 of 37 applicants and they are altered to their detriment without any opportunity, which cannot be countenanced in law.
7. Accordingly, the TAs stand disposed of with a applicants for enhancing the pay scale in ACP within a period of three months from the date of receipt of a copy of this order. No costs.";
that now the management issued the Office Order No. DOH/DDH(HQ.)/NDMC/2013/398 dated 17.09.2013 to implement in respect of the petitioner and other workers who came from DDA and absorbed in MCD; that accordingly, the workman is entitled the 1 st ACP in the pay scale of Rs.40006000/ and 2 nd ACP in the pay scale of Rs.5000 8000/, respectively, instead of Rs.32004900/ and Rs.40006000/ respectively; that the management of MCD also issued the Circular No. AO(Hort.)/SDMC/2015/668 dated 26.05.2015 and reiterated the said stand as per office order dated 17.09.2013 and accordingly, the workman Shri Surta Singh is entitled the same pay scale granted by the DDA to their employees and the same is applicable to him; that as per the service condition as confirmed by the Hon'ble CAT, Hon'ble Division Bench of High Court of Delhi and by the Hon'ble Supreme Court of India dismissed the SLP filed by the management; that the workman has completed more than 24 years of service within 31st August, 2008, so he is entitled to 1st ACP in the pay scale of Rs.40006000/ w.e.f. 9th August, 1989 and 2nd ACP in the pay scale of Rs.50008000/ + Grade Pay of Rs. 4200/ w.e.f. 01.01.2007 and also entitled as per incidental benefits for further fixation as per 6 th Pay Commission of Rs.520020200/ + Grade Pay of Rs.1900/ w.e.f. 01.01.2006; that this Hon'ble Tribunal is competent to award the proper pay I.D. No 754/16 Pages 5 of 37 scale to the workman in accordance with the order of DDA as he has been transferred and absorbed in MCD and his service conditions are the same granted to pay scale as DDA employees; that as per the Statement of Claim, the workman is entitled the 1st ACP in the pay scale of Rs.40006000/ and as per the consequential benefits after completion of further 12 years of service, the workman is entitled 2 nd ACP in the pay scale of Rs.50008000/; that the management vide its order dated 17.09.2013, the workman is entitled the ACP as allowed to the DDA employees and he is being the DDA employee and transferred to MCD as Mason, he has to be granted same pay scale and ACP after 12 years w.e.f. 09.08.1998 and further entitled 2 nd ACP after completion of 12 years of service.
3. It is prayed that this Hon'ble Tribunal may kindly allow the workman Sh. Surta Singh, Mason the pay scale of Rs. 30504590/ w.e.f. 01.01.1996 treated as the pay scale of Rs.9501400/ and Rs.9501500/ has been merged with effect from the said date and Sh. Surta Singh is granted 1 st ACP in the pay scale of Rs.40006000/ and after further completion of 12 years (i.e. 24 years), he is entitled the 2nd ACP in the pay scale of Rs.5000 8000/ being the consequential benefits as he has been absorbed in MCD from DDA with all service conditions.
4. In the written statement, filed by the management to the amended statement of claim of the workman, it is stated by way of preliminary objections that the present dispute is not an industrial dispute as defined under section 2(k) of the Industrial Disputes Act, 1947, also the present dispute is an individual dispute as such the reference order and present claim is illegal and not maintainable and is liable to be dismissed;
I.D. No 754/16 Pages 6 of 37 that the claim is also bad for want of espousal, also the alleged espousal/ sponsorship dated 24.12.2006 is forged and fabricated; that the present case is bad in law and is contrary to the rules and regulations as well as settled policy of the management; that as such also the present claim is liable to be rejected outrightly; that the present dispute is not supported by the majority of the same category of workmen and as such also the present dispute is not maintainable; that the present dispute is not an industrial dispute, as it is not espoused by the union and majority of alike coemployees/ workmen and as such the same is not maintainable and is liable to be rejected; that no demand notice has been served upon the management as such the present dispute is not an industrial dispute and therefore, reference is bad in law and liable to be rejected; that the reference has been made mechanically without application of mind, therefore, the present dispute is bad in law and as such the claim of the workman is liable to be rejected; that the present claim is devoid of any cause of action against the management and as such also the claim is liable to be dismissed qua the management; that the present case suffers from inordinate and unexplained delay, time barred as well as latches; that the workman has been claiming pay scale of Rs.9501500/ w.e.f. 01.02.1993 revised from time to time including the proper pay scale of 1st ACP w.e.f. 9th August, 1999 along with all consequential benefits whereas the present dispute has been raised in the year 2013 i.e. after the lapse of more than 20 years as such the claim is liable to be dismissed; that in view of the same, the claim of the workman is liable to be dismissed as the same would cause serious prejudice to the management; that also in light of the said delay, if the relief as claimed is granted the same would cause heavy I.D. No 754/16 Pages 7 of 37 monetary loss to the management and the action of the claimant may give rise to further industrial dispute and will disturb the industrial harmony as such also the claim of the claimant is liable to be rejected, in the interest of justice; that the workman/ claimant has concealed material facts as well as played fraud that he had previously filed an application / claim on similar grounds before the Hon'ble Central Administrative Tribunal Principal Bench, New Delhi which was registered bearing number O.A. No. 3975/2010 titled as Surta Singh Vs. MCD and Ors.; that the same was contested by the management and the Hon'ble Tribunal was pleased to dismiss the aforesaid application/ claim; that therefore, the matter has already been adjudicated and finalized upon and hence, the present claim is not maintainable and liable to be dismissed as the same is barred by the law of Res judicata, fraud etc.; that even otherwise, the present dispute is bad in law and is contrary to the rules and regulations as well as settled policy of the management; that moreover, the workman namely, Surta Singh (Mason) was granted ACP as per the office Memorandum No. 35034/1/97Estt.(D) dated 09/08/1999 of Govt. of India adopted by the management; that according to aforesaid scheme, the workman falls under condition 7 for grant of benefits under the ACP scheme of Annexure I and accordingly, he was granted standard common pay scale mentioned in AnnexureII; that as the post of Mason is an isolated post, therefore, the workman was granted first ACP of the scale S6 i.e. 3200854900 and second ACP S7 i.e. 4000100 6000, therefore, the workman is not entitled for the relief as claimed; that the relief i.e. grant of said ACP claimed by the workman cannot be claimed as a matter of right, hence, the present claim is liable to be dismissed; that the I.D. No 754/16 Pages 8 of 37 management is following the abovesaid office memorandum/ scheme in its letter and spirit and whosoever had been granted high scale in contravention of provisions the said scheme will be withdrawn; that no discrimination has been met to the workman or the management has arbitrarily regularized the services of the workman in lower pay scale; that the MCD General Mazdoor Union has no Locus Standi to raise the present dispute; that the aforesaid Union is not the recognized Union of the management i.e. S.D.M.C. and as such the present dispute is not maintainable and is liable to be dismissed; that it is the settled law that the Ld. Tribunal cannot go beyond the terms of reference and the relief sought is beyond the preview of the reference before this Ld. Tribunal; that the workman is not the workman as defined under section 2 (s) of the I.D. Act, as such the claim is liable to be dismissed outrightly; that the present case suffers from latches; that the workman has been claiming pay scale of Rs.9501500/ w.e.f. 01.02.1993 revised from time to time including the proper pay scale of 1st ACP w.e.f. 9th August, 1999 alongwith all consequential benefits whereas the present dispute has been raised in the year 2013 i.e. after the lapse of more than 20 years as such the claim is liable to be dismissed in the court case Hon'ble Supreme Court in its recent judgment reported in (2005) 5 SCC 91, wherein the Hon'ble Court has clearly observed that "Though court cannot import a limitation period when statue does not prescribe the same, it does not mean that irrespective of facts and circumstances of each case, a stale claim must be entertained and relief granted by authority concerned under the I.D. Act, on facts held, conduct of respondent in approaching the Labour Court after more than seven years was rightly considered a relevant factor by it in I.D. No 754/16 Pages 9 of 37 refusing to grant relief to her". In view of the above, the present claim is liable to be rejected outrightly. In yet, another case titled as "State of Punjab Versus Sh. Kali Dass & Anr.": Reported in 1997 LLR 349, the Hon'ble High Court of Punjab & Haryana has discussed the point of delay and limitation in raising the Industrial Dispute and denied the relief to the workman raising the industrial dispute after the expiry of 3 years; that in view of the same the claim of the workman is liable to be dismissed; that the claim of the claimant is not maintainable as the same is based upon falsehood; that the present claim is barred by hopeless and unexplained delay and latches; that allowing the same shall cause irreparable loss, prejudice and injury to the management; that the claim is not maintainable either on law or on facts; that the present claim does not pertain to pre existing rights of the claimant as such is not at all maintainable; that the present claim is not maintainable since the appropriate Govt. under I.D. Act, 1947 with regard to the management is Govt. of NCT and not central government thus the claim also deserves dismissal on this ground itself; that the claim is also not maintainable since the claimant was not all party to the case decided by Hon'ble High Court of Delhi in W.P. (C) No. 2621/2010 or in W.P. (C) No. 2671/2010; that the present claim is not maintainable on the ground that ACP cannot be claimed as a matter of right and thus the claim is liable to be rejected; that the claim of the claimant is not maintainable also on the ground that all benefits for which he is entitled has already been given to him and nothing more is payable; that even otherwise the present case been filed on the basis of order dated 17.09.2013 hence, the present case is in the nature application U/s 33C(1) of the I. D. Act, as such the Ld. Court I.D. No 754/16 Pages 10 of 37 has no jurisdiction to entertain the present case; that hence, the same is liable to be dismissed as the same is not maintainable in the eyes of law before this Ld. Tribunal; that moreover as per terms of management's Rule and Regulation, there are two A.C.P.'s, one of 12 years according to which the claimant is getting the present A.C.P.; that the other A.C.P. is of 24 years which has a higher A.C.P. and order to claim the same one has to pass the Trade Test; that therefore, the present claimant in order to claim the higher A.C.P. has to pass the trade test; that since the claimant has not appeared in the trade test, hence, the claimant is not entitled to any relief as prayed for in the present petition under reply; that the claim of the claimant is not maintainable because the claimant has not approached before this Ld. Tribunal with clean hands; that the claim of the claimant is not maintainable as the claimant has concealed the vital and material facts before this Ld. Tribunal and as such the avernments, under reply, is a bundle of lies; that the claim of the claimant is not maintainable as there is no cause of action to file the present claim and as such the same deserves dismissal.
On merits, it is stated that the contents of the statement of claim are wrong and denied except as to what is a matter of record and admissions made therein. All other avernments as stated in the statement of claim were denied on behalf of the management and dismissal of the statement of claim of the workman with exemplary costs has been prayed for.
5. Rejoinder has been filed on behalf of the workman to the written statement of the management and all avernments as stated in the written statement were denied on behalf of the workman whereas contents of statement of claim reiterated and prayer is made for granting the relief to the I.D. No 754/16 Pages 11 of 37 workman, as prayed in the statement of claim.
6. Consequent to amendment of statement of claim, following issues were framed vide order dated 14.02.2017, on record:
(i) Whether the claim of the workman has been properly espoused by the Union? OPW.
(ii) Whether the claim of the workman is unduly delayed and hit by latches as alleged by the management vide preliminary objection no.8 of its written statement? OPM.
(iii) Whether the claim of the workman is barred by the law of resjudicata as alleged by the management vide preliminary objection no.10 of its written statement? OPM.
(iv) As per terms of reference. OPW
(v) Relief.
Thereafter, the matter was fixed for workman evidence.
7. Workman/ Sh. Surta Singh examined himself as WW1 in workman evidence. In his affidavit by way of evidence, Ex.WW1/A, he has reiterated the contents of his statement of claim, as abovesaid, on record. He has also relied upon documents, Ex.WW1/1 to Ex.WW1/3, in the same.
Ex.WW1/1 being copy of Office Memorandum No. 35034/1/97Estt.(D) dated 09.08.1999 of the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) regarding The Assured Career Progression Scheme for the Central Government Civilian Employees; Ex.WW1/2 (colly.) (pages 1 to 16) being copy of order dated 11.08.2006 of the Delhi Development Authority, O/o The Commissioner (Personnel) regarding the conditions for grant of ACP scheme to its Workcharged Regular employees and Ex.WW1/3 being copy I.D. No 754/16 Pages 12 of 37 of the Office Order No. DOH/DDH(HQ.)/NDMC/2013/398 dated 17.09.2013 of the management/ North Delhi Municipal Corporation regarding implementation of Order dated 01.03.2013 passed by the Hon'ble High Court of Delhi at New Delhi in Writ Petition (C) No. 2621/2010 in case titled as "MCD Vs. Ram Avtar & Ors." and Writ Petition (C) No. 2671/2010 in case titled as "MCD Vs. Virender Singh & Ors.", thereby accepting the claims of the Petitioners in the said Writ Petitions transferred from DDA and enhancing their respective pay scale in ACP as per if they had continued to be in DDA.
8. The workman/ WW1 Sh. Surta Singh has been crossexamined on behalf of the management in workman evidence to the effect that he retired from the employment of the management in the year 2014; that it is correct that during his employment he had never represented to the management regarding his claim and demand for revision of pay scale and benefits of ACP etc. in his respect; that it is further correct that even after his retirement he had not given any demand notice to the management in respect of his instant claim; that he had also not given any demand or claim or complaint to any trade union in respect of his instant claim; that he had also not been member of any trade union at any point of time; that it is correct that prior to the instant claim he had made the same claim before the Central Administrative Tribunal which had been dismissed. Again said, that he had not made any such claim; that it is correct that his claim has not been espoused by any trade union; Vol. He did not know what is a trade union; that his claim has not been filed before the Labour Office by any labour union; Vol. Whatever has been filed on his behalf has been done by his I.D. No 754/16 Pages 13 of 37 authorized representative Sh. B. K. Prasad; that it is wrong to suggest that he has been given his entitlement regarding proper pay scale and ACP as per rules by the management; that it is correct that he has not been party in any proceeding before the Hon'ble High Court of Delhi; that he did not know what is a trade test; that he cannot say that as he had not passed the trade test he has not been given the claimed pay scales and ACP and that it is wrong to suggest that he has filed a false claim or that he is not entitled to the pay scale and benefits of ACP as claimed by him.
9. Workman has also led the evidence of WW2 Sh. B. K. Prasad, President, MCD General Mazdoor Union (Regd.) by way of his affidavit by way of evidence, Ex.WW2/A, along with Ex.WW2/1 to Ex.WW2/6, in workman evidence, on record.
Vide his affidavit by way of evidence, Ex.WW2/A, WW2 Sh. B. K. Prasad has deposed that he being the President of MCD General Mazdoor Union (Regd.) and competent to swear this affidavit; that the union sponsors the cause of workman for proper pay scale and proper 1 st and 2nd ACP; that the pay scale of Mason in DDA as well as in MCD of Rs.260 400/ revised to Rs. 9501500/ and further revised from time to time and that the management finally issued the Office Order dated 04.09.2017 for proper pay of 1st ACP in the pay scale of Rs.40006000/ and 2 nd ACP in the pay scale of Rs.50008000/.
Ex.WW2/1 being copy of the espousal/ sponsorship dated 24.12.2006 of the MCD General Mazdoor Union (Regd.) in respect of the instant claim of the workman against the management authorizing WW2 Sh. B. K. Prasad, President of the Union to sign and verify the statement of I.D. No 754/16 Pages 14 of 37 claim on behalf of the Union and represent the dispute before the Conciliation Officer/ Industrial Tribunal/ Labour Court, as the case may be; Ex.WW2/2 being copy of the demand notice dated 17.01.2007 of the MCD General Mazdoor Union (Regd.) to the management in respect of the instant claim of the workman; Ex.WW2/3 being copy of the Office Order dated 07.03.2005 of the management placing Sh. Prabhu Ram (Mason) and Sh. Janak Singh (Mason) in the pay scale of Rs.260400 (Revised from time to time) w.e.f. 01.04.1982 and in the pay scale of Rs.9501500 (Revised from time to time) w.e.f. 01.04.1987, respectively, in pursuance of Orders passed by Hon'ble High Court of Delhi in case of "Prabhu Ram Vs. Secretary & Ors." in Writ Petition (C) No. 1128/2004 and with the prior approval of Additional Commissioner (Engg.) dated 28.02.2005; Ex.WW2/4 being copy of the Certificate of Registration of Trade Union bearing No.4209 in respect of the MCD General Mazdoor Union under the Trade Unions Act dated 23.01.1992; Ex.WW2/5 being copy of the Order dated 29.07.2005 of the management/ MCD granting permission for negotiation and correspondence to M.C.D. General Mazdoor Union (Regn. No. 4209) in the Horticulture department of the management/ MCD and Ex.WW2/6 being copy of the Office Order dated 04.09.2017 of the management, North Delhi Municipal Corporation, Horticulture Department in respect of grant of benefits of Assured Career Progression Scheme to the staff transferred from DDA to erstwhile Municipal Corporation of Delhi at par their counterparts drawing in DDA.
In his cross examination on behalf of the management in workman evidence, WW2 Sh. B. K. Prasad, President, MCD General I.D. No 754/16 Pages 15 of 37 Mazdoor Union (Regd.) has deposed that he did not remember when his Union was registered; that he had not filed on record constitution of the Union; that election of union are not held annually; that it is the committee which decides the duration of executive members; that he cannot tell whether or not there is any mention in this regard in the constitution of the union; that it is wrong to suggest that in case of present union it is the constitution which decides the tenure of executive members and it is not the committee which decides so; that it is wrong to suggest that their Union does not represent sufficient numbers of workmen; that it is wrong to suggest that no election of the union has taken place; that union has sent list of elected executive members to the Registrar of Trade Union and also to the MCD; that he had neither placed the document regarding filing of annual returns before the Registrar of Trade Union nor he had brought the same on that day; Vol. He can produce the same; that it is wrong to suggest that he had neither placed the above mentioned documents nor he had brought the same on that day as there were no such documents with the union; that the agenda of executive meeting dated 24.12.2006 was sent 15 days prior to the meeting, but he did not remember the exact date; that he had neither placed on record copy of said agenda and minutes of executive meeting dated 24.12.2006 before this Hon'ble Tribunal nor he had brought the same on that day; Vol. He can produce the same; that all 11 executive members were present in the executive meeting held on 24.12.2006; that they were maintaining Minutes Register of each and every meeting of executive committee of their Union; that he had not brought the same, but he can produce the same; that union received written complaint from workman; that I.D. No 754/16 Pages 16 of 37 said complaint has not been filed on record; that he did not remember the date when the said complaint was received by the union; that workman has been member of union since last many years; that he had not filed any record in this regard; that it is wrong to suggest that no meeting of the union took place regarding espousal of cause of the workman and that it is wrong to suggest that documents Ex. WW2/1 to 2/6 are false and fabricated documents.
Thereafter, workman evidence has been closed, on record, and the case fixed for management evidence.
10. In the management evidence, the management has led the evidence of MW1 Sh. Ajay Kumar, UDC of the management, who has tendered his affidavit by way of evidence, Ex.MW1/A, in which he has reiterated the contents of the written statement, filed on behalf of the management to the amended statement of claim, as abovesaid, on record. He has relied upon documents Ex. MW1/1, in the same, on record.
Ex.MW1/1 being the copy of Office Order dated 17.11.1983 of the management regarding promotion of Beldars to the posts of Jr. Mason temporarily, who are on the approved panel and appeared in the Trade Test for promotion to the posts of Masons in the pay scale of Rs.210270.
In his crossexamination on behalf of the workman in management evidence, MW1 Sh. Ajay Kumar, UDC of the management has deposed that he had not brought authority letter on behalf of the management on that day; that the workman was not in employment during his tenure; that it is correct that workman had joined the management from DDA; that office order Ex. WW2/6 pertains to Horticulture Department of North Delhi I.D. No 754/16 Pages 17 of 37 Municipal Corporation; that he cannot say whether the said office order pertains to the pay scale of the workers who joined the management from DDA; that he cannot say whether Ex. WW1/2 is in respect of service conditions of DDA employees who were transferred to the management; that he further cannot say whether Ex. WW1/3 pertains to the entitlement of the claimant of ACP against the management; that he cannot say whether the claimant is entitled to his claim towards the management as per the various judicial orders/ judgments relied upon by him; that it is correct that the judgments mentioned by me in Para9 & 16 of his affidavit do not pertain to entitlement of ACP of the claimant towards DDA; that it is wrong to suggest that he was not authorized by the management to depose before this Hon'ble Court in the instant matter or that he was not competent to depose on behalf of the management and that it is wrong to suggest that he did not have any personal knowledge of the matter or that he was deposing falsely.
Thereafter, management evidence has been closed, on record.
11. Final arguments have been heard from Sh. B.K. Prasad, Ld. AR for the workman and Sh. Shashwat Singh Gaur, Ld. AR for the management/ SDMC, as also I have carefully gone through the record of the case.
12. Ld. AR for the workman has relied upon following citations:
i) Judgment dated 06.08.2007 passed in W.P. (C) No. 13023/2005 titled 'Workmen of MCD Vs. MCD' of the Hon'ble High Court of Delhi at New Delhi.
ii) Nazrul Hassan Siddiqui, petitioner Vs. Presiding Officer, Central Government IndustrialcumLabour Court no.2, Bombay and Others, respondents, 1997 LAB I.C. 1807.
iii) State of Bihar Vs. Kripa Shanker Jaiswal (1961) 2 SCR 1.
iv) Rule 4 (b) of the Industrial Disputes (Central) Rules, 1957.
I.D. No 754/16 Pages 18 of 37
My findings issuewise are as under:
13. Findings on issue no.1.
Issue no.1: Whether the present claim of the workman has been properly espoused by the Union? OPW It is seen from the record that workman has led the evidence of WW2 Sh. B. K. Prasad, President, MCD General Mazdoor Union (Regd.) by way of his affidavit by way of evidence, Ex.WW2/A along with Ex.WW2/1 to Ex.WW2/6, in workman evidence, as abovesaid, on record.
It is further seen from the record that the WW2 Sh. B.K. Prasad, President, MCD General Mazdoor Union (Regd.) by way of his affidavit by way of evidence, Ex.WW2/A along with Ex.WW2/1 to Ex.WW2/6, in workman evidence, as abovesaid, on record, has proved Ex.WW2/1 being copy of the espousal/ sponsorship dated 24.12.2006 of the MCD General Mazdoor Union (Regd.) in respect of the instant claim of the workman against the management authorizing WW2 Sh. B. K. Prasad, President of the Union to sign and verify the statement of claim on behalf of the Union and represent the dispute before the Conciliation Officer/ Industrial Tribunal/ Labour Court, as the case may be, Ex.WW2/2 being copy of the demand notice dated 17.01.2007 of the MCD General Mazdoor Union (Regd.) to the management in respect of the instant claim of the workman, Ex.WW2/4 being copy of the Certificate of Registration of Trade Union bearing No.4209 in respect of the MCD General Mazdoor Union under the Trade Unions Act dated 23.01.1992 along with Ex.WW2/5 being copy of the Order dated 29.07.2005 of the management/ MCD granting permission for I.D. No 754/16 Pages 19 of 37 negotiation and correspondence to M.C.D. General Mazdoor Union (Regn. No. 4209) in the Horticulture department of the management/ MCD, to which it is seen from the crossexamination of the WW2 Sh. B. K. Prasad, President, MCD General Mazdoor Union (Regd.) on behalf of the management in workman evidence that there is no effective rebuttal to the factum of espousal of the case/ claim of the workman in the instant dispute qua the management by the concerned Union vide the testimony of WW2 Sh. B. K. Prasad, President, MCD General Mazdoor Union (Regd.) by way of his affidavit by way of evidence, Ex.WW2/A along with Ex.WW2/1, Ex.WW2/2, Ex.WW2/4 and Ex.WW2/5, in workman evidence, as abovesaid, in this regard, on record, apart from bald denial.
14. Moreover, in State of Bihar vs. Kripa Shanker Jaiswal, AIR 1961 SC 304; (1961) 2 SCR 1, it has been held that a dispute becomes an industrial dispute even where it is sponsored by union which is not registered or where the dispute raised is by some only of the workmen. Similar observations were made in Nazrul Hassan Siddiqui, Petitioner Vs. Presiding Officer, Central Government IndustrialcumLabour Court no.2, Bombay and Others, Respondents, 1997 LAB I.C. 1807.
15. It has been held vide citation J. H. Jadhav Vs. Forbes Gokak Ltd., AIR 2005 SC 998: MANU/SC/0103/2005: "7. As far as espousal is concerned there is no particular form prescribed to effect such espousal. Doubtless, the Union must normally express itself in the form of a resolution which should be proved if it is in issue. However proof of support by the Union may also be available aliunde. It would depend upon the I.D. No 754/16 Pages 20 of 37 facts of each case. The Tribunal had addressed its mind to the question, appreciated the evidence both oral and documentary and found that the Union had espoused the appellant's cause.
8. The Division Bench misapplied the principles of judicial review under Article 226 in interfering with the decision. It was not a question of there being no evidence of espousal before the Industrial Tribunal. There was evidence which was considered by the Tribunal in coming to the conclusion that the appellant's cause had been espoused by the Union. The High Court should not have upset this finding without holding that the conclusion was irrational or perverse. The conclusion reached by the High Court is therefore unsustainable.
9. For all these reasons the decision of the High Court cannot stand and must be set aside."
16. Hence, in view of the above facts and circumstances of the case and the proposition of law on the same, as above, it is held that the claim of the workman/ claimant has been properly espoused by the Union and thus, the present dispute is an industrial dispute as defined u/s 2(k) of the Industrial Disputes Act, 1947 (as amended upto date), notwithstanding the admission of the workman/ WW1 in his crossexamination on behalf of the management in workman evidence that he had also not been a member of any trade union at any point of time and it is correct that his claim has not been espoused by any trade Union. The issue no.1 is decided accordingly.
17. Findings on issue no.2:
Issue no.2: Whether the claim of the workman is unduly delayed and hit by latches as alleged by the management vide preliminary objection no.8 of its written statement?OPM.
I.D. No 754/16 Pages 21 of 37 It is seen from the record that the workman has relied upon, Ex.WW1/3, being copy of Office Order bearing No. DOH/DDH(HQ)/NDMC/2013/398 dated 17.09.2013 of the management/ North Delhi Municipal Corporation, Office of Director (Horticulture), Dr. S. P. Mukherjee Civic Centre, 16th Floor, EBlock, J. L. Nehru Marg, New Delhi110 002 (erstwhile Municipal Corporation of Delhi), which is reproduced herein under:
"Commissioner, North Delhi Municipal Corporation and Commissioner, South Delhi Municipal Corporation, vide orders dated 22.08.2013 and 30.08.2013, respectively, have been pleased to order for the implementation of order dated 01.03.2013 passed by the Hon'ble High Court of Delhi at New Delhi in Writ Petition (C) No. 2621/2010, in case titled as "MCD Vs. Ram Avtar & Others" and Writ Petition (C) No. 2671/2010, in case titled as "MCD Vs. Virender Singh & Others". The operative paras of above judgment / order is as under : ".......6. On careful consideration of the rival contentions of the parties, in our considered view, on transfer of applicants from DDA to MCD what has been protected and safeguarded is not the terms and conditions, as existed but also on the premise that the same would be admissible if they had continued to be in DDA. This clearly establishes that even the future benefits are also protected in DDA. The only exception to deny is when the terms and conditions are altered by the Corporation, which have not been altered. As we find that in DDA the higher pay scale has been given to these categories as ACP pay scale, the same having been lowered down, without any alteration of service conditions, I.D. No 754/16 Pages 22 of 37 the conditions are disadvantageous to the applicants and they are allowed to their detriment without any opportunity, which cannot be countenanced in law."
Accordingly, in terms of the above, the claims of the applicants transferred from DDA and petitioners in the above two cases are accepted thereby enhancing their respective pay scale in ACP as per if they had continued to be in DDA. The zonal departmental head shall take independent matters separately and implement the order.
Sd./ Director (Horticulture) North D.M.C."
along with Ex.WW2/6, being copy of Office Order dated 04.09.2017, of the management/ North Delhi Municipal Corporation, Horticulture Department, 16th Floor, Dr. S. P. Mukherjee Civic Centre, J. L. Nehru Marg, New Delhi 110 002 (erstwhile Municipal Corporation of Delhi), which is reproduced hereinbelow:
"Devender Singh Mali & Others working in East DMC and other 104 other Malis working in all three Corporations filed an O.A. bearing No. 1503/2016 before Hon'ble Central Administrative Tribunal, Principal Bench, New Delhi with following prayer:
(A) Set aside the order dated 19.02.2016 (Impugned) passed by the Respondent No.1;
(B) Direct the Respondents to grant ACP benefits to the Applicants as per scales mentioned in Para 4.8 above;
(C) Pass any other appropriate order or relief which this Hon'ble Tribunal deems fit and proper.
I.D. No 754/16 Pages 23 of 37 (The petitioners of the abovementioned OA were transferred from DDA to erstwhile Municipal Corporation of Delhi with the transfer of the services of DDA Colonies & now working in all three Corporations).
Hon'ble Central Administrative Tribunal passed a common judgment in OA No.1503/2016, OA No. 1814/2016, OA No. 1080/2016, OA No. 986/2016 and OA No. 1769/2016 on dated 08.11.2016 and the operative para of the case is as follows:
"We, therefore, allow these OAs and quash the impugned order dated 19.02.2016. We further direct that applicants would remain entitled for grant of ACP benefits in pay scales granted to them by the respondents vide their orders on different dates while implementing the judgment of Hon'ble High Court of Delhi and various OAs mentioned in the impugned order itself. No costs."
The orders of Central Administrative Tribunal was challenged before Hon'ble High Court Delhi vide W.P. (C) 3828/2017 and C. M. Nos. 16830/2017 and 16831/2017 titled as North DMC V/s Devender Singh (Mali) and the same is dismissed by High Court Delhi vide orders dated 03.05.2017. Further Special Leave Petition (C) bearing No. SLP (C) No. 16639/2017 titled as North Delhi Municipal Corporation V/s Devender Singh, Mali. Hon'ble Supreme Court of India vide orders dated 10.07.2017 dismissed the SLP.
The office order No. Admn.Officer/OS/North DMC/2016/1046 dated 19.02.2016 was issued for grant of benefits of ACP/ MACP Scheme for the employees transferred from DDA to erstwhile Municipal Corporation I.D. No 754/16 Pages 24 of 37 of Delhi in accordance with the establishment order No. 594 dated 13.04.2015.
Accordingly, in compliance of orders of Central Administrative Tribunal dated 08.11.2016 in OA No. 1503/2016 titled as Devender Singh & Ors. V/s North Delhi Municipal Corporation and Ors. and other connected OAs, the office order No. Admn. Officer/OS/North DMC/2016/1046 dated 19.02.2016 is hereby withdrawn. Further, the staff transferred from DDA to MCD shall be entitled for benefits of Assured Career Progression Schemes as par their counterparts drawing in DDA.
This issues with the approval of Competent Authority.
Sd./ ASSISTANT COMMISSIONER (HORTICULTURE) NORTH DELHI MUNICIPAL CORPORATION"
along with copy of Office Order bearing No. Supdt. (Hort.)/HQ/SDMC/2018/1563 dated 06.12.2018 of the management/ South Delhi Municipal Corporation, Horticulture Department (HQ.), Dr. S. P. Mukherjee Civic Centre, New Delhi110 002 (erstwhile Municipal Corporation of Delhi), Mark 'A', on record, which is reproduced hereinbelow: "A meeting was held on 20.11.2018 under the Chairmanship of the Additional Commissioner (Hort.) related to the Various Court Case for granting of the ACP to the DDA employees transferred from DDA to MCD. The decision taken in the said meeting is the I.D. No 754/16 Pages 25 of 37 employees who transferred from DDA to MCD may be given similar benefits as their counterparts are getting in the DDA and no benefits in the shape of any other allowance will be given to them as their same level employees getting in MCD.
All the DDHs of SDMC are hereby requested to take action accordingly, in such type of ACP cases as decided in the meeting.
Sd/ Superintendent (Hort.)/HQ"
in order to be entitled to the relief as per the terms of reference of the instant industrial dispute, between the parties, viz.
"Whether Shri Surta Singh S/o Late Sh. Fauiza Singh, Mason is entitled to the pay scale of Rs.950 1500 w.e.f. 01.02.1993, revised from time to time including the proper pay scale of 1st A.C.P. w.e.f. 9th August, 1999 along with all consequential benefits and if so, to what relief is he entitled and what directions are necessary in this respect?"
on the ground of parity with the Applicants/ Petitioners in the abovementioned O.As against the Respondent, management/ MCD before the Central Administrative Tribunal, Principal Bench, New Delhi (Respondents in the corresponding Civil Writ Petitions filed by the Respondent/ MCD as Petitioner against the Orders of the CAT, Principal Bench, New Delhi in the subject O.As before the Hon'ble High Court of Delhi at New Delhi, as abovementioned).
I.D. No 754/16 Pages 26 of 37
18. It has been argued by the Ld. AR for workman that no period of limitation is prescribed for reference of an industrial dispute for its adjudication and disposal in accordance with law to the court of competent jurisdiction on the part of the appropriate Government under the provisions of the Section 10 (1) of the Industrial Disputes Act, 1947 (as amended upto date).
19. Vide citation Raghubir Singh, Appellant Vs. General Manager, Haryana Roadways, Hisar, Respondents, MANU/SC/0767/ 2014 : (2014) 10 SCC 301, it has been held that: "11. In our view of the facts and circumstances of the case on hand, the reference was made by the State Government to the Labour Court for adjudication of the existing industrial dispute; it has erroneously held it to be barred by limitation. This award was further erroneously affirmed by the High Court, which is bad in law and therefore the same is liable to be set aside. According to Section 10(1) of the Act, the appropriate government 'at any time' may refer an industrial dispute for adjudication, if it is of the opinion that such an industrial dispute between the workman & the employer exists or is apprehended. Section 10(1) reads as follows:
"10(1)[Where the appropriate government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates I.D. No 754/16 Pages 27 of 37 to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute , whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication."
Thus, it is necessary for us to carefully observe the phrase 'at any time' used in this section. Therefore, there arises an issue whether the question of limitation is applicable to the reference of the existing industrial dispute that would be made by the State Government either to the Labour Court or Industrial Tribunal for adjudication at the instance of the appellant.
12. This Court in Avon Services Production Agencies (Pvt.) Ltd. v. Industrial Tribunal, Haryana & Ors.[2], after interpreting the phrases "at any time" rendered in Section 10(1) of the Act, held thus: "7.......Section 10(1) enables the appropriate Government to make reference of an industrial dispute which exists or is apprehended at any time to one of the authorities mentioned in the section. How and in what manner or through what machinery the Government is apprised of the dispute is hardly relevant.......The only requirement for taking action under Section 10(1) is that there must be some material before the Government which will enable the appropriate Government to form an opinion that an industrial dispute exists or is apprehended. This is an administrative function of the Government as the expression is understood in contradistinction to judicial or quasijudicial function..."
Therefore, it is implicit from the above case that in case of delay in raising the industrial dispute, the appropriate government under Section 10(1) of the Act I.D. No 754/16 Pages 28 of 37 has the power, to make reference to either Labour Court or Industrial Tribunal, if it is of the opinion that any industrial dispute exists or is apprehended at any time, between the workman and the employer.
13. Further, in Sapan Kumar Pandit v. U.P. State Electricity Board & Ors.[3], it is held by this Court as under: "15.There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the Union on account of other justified reasons it does not cause the dispute to wane into total eclipse. In this case when the Government have chosen to refer the dispute for adjudication under Section4K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination." (Emphasis supplied)
14. Therefore, in our considered view, the observations made by this Court in the Rajasthan State Agriculture Marketing Board case (supra) upon which the learned Additional Advocate General for the State of Haryana has placed reliance cannot be applied to the fact situation of the case on hand, for the reason that the Labour Court has erroneously rejected the reference without judiciously considering all the relevant factors I.D. No 754/16 Pages 29 of 37 of the case particularly the points of dispute referred to it and answered the 2nd issue regarding the reference being barred by limitation but not on the merits of the case. The said decision has no application to the fact situation and also for the reason the catena of decisions of this Court referred to supra, wherein this Court has categorically held that the provisions of Limitation Act under Article 137 has no application to make reference by the appropriate government to the Labour Court/Industrial Tribunal for adjudication of existing industrial dispute between workmen and the employer.
15. In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties, at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to supra. Therefore, the State Government has rightly exercised its power under Section 10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit cases referred to supra."
20. It has been further held Vide citation Kuldeep Singh, Appellant Vs. General Manager, Instrument Design Development and Facilities Centre and Anr., AIR 2011 SC 455: (2010) 14 SCC 176: I.D. No 754/16 Pages 30 of 37 "21. In view of the above, law can be summarized that there is no prescribed time limit for the appropriate government to exercise its powers under section 10 of the Act. It is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate government "at any time"
refer the dispute to a Board or Court for enquiry. The reference sought for by the workman cannot be said to be delayed or suffering from a lapse when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act. The real test for making a reference is whether at the time of the reference dispute exists or not and when it is made it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court can not go behind the reference. It is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference. It cannot itself decide the merit of the dispute and it is for the appropriate court or forum to decide the same. The satisfaction of the appropriate authority in the matter of making reference under section 10 (1) of the Act is a subjective satisfaction. Normally, the Government cannot decline to make reference for latches committed by the workman. If adequate reasons are shown, the Government is bound to refer the dispute to the appropriate court or Forum for adjudication. "
21. Accordingly, in view of the abovesaid admitted exhibits and Mark 'A', on record, and the law on the subject, as above, the instant claim of the claimant/ workman is not found to be stale, as alleged by the management. The instant issue is accordingly, decided in favour of the workman and against the management.
I.D. No 754/16 Pages 31 of 37 22. Findings on issue no.3:
Issue no.3: Whether the claim of the workman is barred by the law of resjudicata as alleged by the management vide preliminary objection no.10 of its written statement? OPM.
It is seen from the record that it has been alleged by the management that instant dispute is barred by the law of resjudicata by virtue of the workman having raised a similar claim bearing O.A. No. 3975/2010 titled as Surta Singh Vs. MCD and Ors. before Central Administrative Tribunal, Principal Bench, New Delhi, which has been dismissed. However, no such evidence has been led in the shape of the pleadings of the parties before the Central Administrative Tribunal in this regard or certified copy of any order passed by it, on the same, in this regard, on the part of the management either in the crossexamination of the workman/ WW1 Sh. Surta Singh in workman evidence or by way of the affidavit by way of evidence, Ex.MW1/A of its management witness MW1 Sh. Ajay Kumar, UDC of the management, in management evidence, on record.
23. It is further seen from the record that consequent to closing of management evidence, even when the case has been fixed for hearing of final arguments/ further final arguments/ clarification, if any, a number of opportunities have been granted to the management in this regard, specifically vide orders dated 24.10.2019 and 18.12.2019, respectively, passed in this regard, on record, which have also not been availed by the management by way of filing of any document in respect of the proceeding vide which it has been alleged by the management that the instant dispute of I.D. No 754/16 Pages 32 of 37 the workman qua the management is hit by the principle of resjudicata. Thereafter, further final arguments have been heard and the case fixed for passing of Award, on record.
24. In view of the abovesaid proceeding, on record, I find that the management has not been able to discharge the onus, which was upon it in respect of the instant issue, as abovesaid, on record. The same is hereby accordingly, decided in favour of the workman and against the management.
25. Findings on issue no.4:As per terms of reference The terms of reference of the instant dispute, between the parties, is as follows: "Whether Shri Surta Singh S/o Late Sh. Fauiza Singh, Mason is entitled to the pay scale of Rs.950 1500 w.e.f. 01.02.1993, revised from time to time including the proper pay scale of 1st A.C.P. w.e.f. 9th August, 1999 along with all consequential benefits and if so, to what relief is he entitled and what directions are necessary in this respect?"
It is seen from the record that the workman in support of his claim/ entitlement, vide the terms of reference of the instant dispute between the parties, as abovesaid, on record, is admittedly relying upon Office Memorandum bearing No. 35034/197Estt.(D) dated 09.08.1999 of the Government of India, Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training), Ex.WW1/1, Order dated 11.08.2006 of the Delhi Development Authority, Office of the Commissioner (Personnel), his erstwhile management, Ex.WW1/2 Colly. (Page nos.116) and Office Order No. DOH/DDH(HQ)/NDMC/2013/398 I.D. No 754/16 Pages 33 of 37 dated 17.09.2013 of the management/ North Delhi Municipal Corporation, Office of Director (Horticulture), Dr. S. P. Mukherjee Civic Centre, Jawahar Lal Nehru Marg, New Delhi110 002, Ex.WW1/3, in this regard, on record, alongwith judgment dated 01.03.2012 passed by the Hon'ble High Court of Delhi at New Delhi in Writ Petition (C) No. 2621/2010, in case titled "MCD Vs. Ram Avtar & Others" and Writ Petition (C) No. 2671/2010 in case titled "MCD Vs. Virender Singh & Others", which has been upheld vide Order dated 02.07.2013 of the Hon'ble Supreme Court of India passed in S.L.P. (Civil) (CC 1045810459/2013), dismissing the aforesaid S.L.Ps of the management/ MCD against the said judgment and order dated 01.03.2012 of the Hon'ble High Court of Delhi in W.P. (C) No. 2621/2010 and W.P. (C) No. 2627/2010, as aforesaid, Mark 'B' Colly. (Page nos. 16), along with copy of Office Order dated 07.03.2005 of the management/ MCD, Ex.WW2/3, copy of Office Order dated 04.09.2017 of the management/ North DMC, Ex.WW2/6, as also, copy of Office Order bearing No. Supdt.
(Hort.)/HQ/SDMC/2018/1563 dated 06.12.2018 of the management/ South Delhi Municipal Corporation, Horticulture Department (HQ.), Dr. S. P. Mukherjee Civic Centre, New Delhi110 002, Mark 'A', on record, which exhibits and documents, I find from the record are not disputed by the management in the instant proceeding, on record.
26. It is further seen from the record that vide the amended statement of claim of the workman, as also by way of his affidavit by way of evidence, Ex.WW1/A, along with Ex.WW1/1 to Ex.WW1/3, as also by way of the affidavit by way of evidence, Ex.WW2/A of WW2 Sh. B. K. Prasad, President, MCD General Mazdoor Union (Regd.) along with Ex.WW2/1 to I.D. No 754/16 Pages 34 of 37 Ex.WW2/6, in the same, as abovesaid, in workman evidence, on record, r/w Office Order No. Supdt.(Hort.)/HQ/SDMC/2018/1563 dated 06.12.2018 of the management/ South Delhi Municipal Corporation, Mark 'A' and judgment dated 01.03.2012 passed by the Hon'ble High Court of Delhi at New Delhi in Writ Petition (C) No. 2621/2010, in case titled "MCD Vs. Ram Avtar & Others" and Writ Petition (C) No. 2671/2010 in case titled "MCD Vs. Virender Singh & Others", which has been upheld vide Order dated 02.07.2013 of the Hon'ble Supreme Court of India passed in S.L.P. (Civil) (CC 1045810459/2013), dismissing the aforesaid S.L.Ps of the management/ MCD against the said judgment and order dated 01.03.2012 of the Hon'ble High Court of Delhi in W.P. (C) No. 2621/2010 and W.P. (C) No. 2627/2010, as aforesaid, Mark 'B' Colly. (Page nos. 16), as abovesaid, on record, it is the case of the workman that the workman was initially appointed as work charge employee in a regular pay scale in DDA as 'Mason' w.e.f. 17.07.1984 by the management of DDA and also modified the pay scale of Mason to Rs.950201150EB251400/ in place of Rs.225 350/; that his services were transferred to MCD w.e.f. 01.02.1993 and he is entitled the pay scale of Rs.9501500/ w.e.f. 01.02.1993 revised from time to time including proper pay scale of 1 st ACP w.e.f. 09.08.1999 in the pay scale of Rs.40006000/ alongwith all consequential benefits and after completion of 24 years of service i.e. w.e.f. 16.07.2008 in the pay scale of Rs.50008000/ as he is entitled the pay scale as provided to the DDA's staff w.e.f. 17.07.1984 vide Office Order No. 366 and has been transferred w.e.f. 01.02.1993 from DDA and posted at Rajouri Garden under Karol Bagh Zone of MCD; that he has been granted lower pay scale of a semi skilled I.D. No 754/16 Pages 35 of 37 worker of Rs.8101150 instead of Rs.9501400 revised from time to time on work of skilled nature of job; that the pay scale of Rs.9501400/ has been merged with Rs.9501500/ and after implementation of 6 th Pay Commission the pay scale of Rs.9501400/ and Rs.9501500/ has been merged and granted new pay scale of Rs.30504590/, to which it is seen from the record that there is no effective rebuttal/ refutal on the part of the management, vide corresponding paras of its written statement in reply to the paras of the amended statement of claim of the workman, in this regard, except for bald denial, as also, it is seen that the factum of the workman having been transferred from his erstwhile management/ employer DDA as work charge employee in a regular pay scale in DDA as 'Mason' w.e.f. 17.07.1984, which had modified the pay scale of Mason to Rs.950201150EB251400/ in place of Rs.225350/ to the present management/ Municipal Corporation of Delhi now after trifurcation known as 'South Delhi Municipal Corporation' w.e.f. 01.02.1993 and the averments that the workman was entitled the pay scale of Rs.9501500/ w.e.f. 01.02.1993 revised from time to time, including proper pay scale of 1st ACP w.e.f. 09.08.1999 in the pay scale of Rs.4000 6000/ alongwith all consequential benefits and after completion of 24 years of service i.e. w.e.f. 16.07.2008 in the pay scale of Rs.50008000/ as he was entitled the pay scale as provided to the DDA's Staff w.e.f. 17.07.1984 vide Office Order No. 366 and has been transferred w.e.f. 01.02.1993 from DDA and posted at Rajouri Garden under Karol Bagh Zone of MCD, have not been effectively rebutted/ refuted, on the part of the management in its cross examination of the workman /WW1 Sh. Surta Singh in WE, along with vide the affidavit by way of evidence, Ex.MW1/A of its MW1 Sh. Ajay Kumar, I.D. No 754/16 Pages 36 of 37 UDC of the management in management evidence and accordingly, in view of the aforesaid facts and circumstances of the case and the exhibits, as abovesaid, specifically Ex.WW1/1 to Ex.WW1/3, Ex.WW2/3, Ex.WW2/6, Mark 'A' and Mark 'B' Colly. (Page nos.16), as abovesaid, on record, laying down in no ascertain terms that benefits availed by the employees of the erstwhile management/ DDA transferred to the management/ MCD would be applicable and available to them, during the tenure of their employment with the management/ MCD, I find that the workman is entitled to the pay scale of Rs.9501500 w.e.f. 01.02.1993, revised from time to time including the proper pay scale of 1st A.C.P. w.e.f. 9th August, 1999 along with all consequential benefits viz. As per the terms of reference, the instant issue. The same is hereby accordingly, decided in favour of the workman and against the management.
27. Findings on issue no.5:Relief.
In view of my findings on the aforesaid issues, as abovesaid, the workman is accordingly, held to be entitled to the pay scale of Rs.9501500 w.e.f. 01.02.1993, revised from time to time, including the proper pay scale of 1st A.C.P. w.e.f. 9th August, 1999, along with all consequential benefits.
28. Award is passed accordingly and the reference is answered in these terms. Copy of the award be sent to the appropriate Government for Digitally signed by publication. File be consigned to the Record Room. CHANDRA CHANDRA GUPTA GUPTA Date: 2020.02.25 Announced in open Tribunal 16:05:27 +0530 on 25.02.2020 (CHANDRA GUPTA) Presiding Officer, Industrial TribunalI Rouse Avenue Courts, New Delhi.
I.D. No 754/16 Pages 37 of 37