t Petition Nos 100 and 1078 of 1988
Under Article 32 of Constitution of India
RD Upadhyaya HN Salve and Rajiv K Garg for the petitioners
RK Jain Ashok Grover and SC Paul for the Respondent
The Judgment of the Court was delivered by K RAMASWAMY J
1
The two writ petitions raise common questions of fact and law and accordingly they are disposed of by a common judgement
The petitioners in both the writ petitions are daily rated workers working in the respondent Corporation and they are seeking relief under article 32 of the Constitution for a Writ of Mandamus or other directions to regularise their services in the respective units and to pay them equal wages with initial basic pay DA and other admissible allowances at par with regularly appointed employees of the respondent performing the same or similar duties
Admittedly they have been appointed on daily wages between 1983 and 1986 and they have been working eversince
It is contended by them that despite their continuous service respondent has resorted to unfair labour practice in creating artificial break in service to deprive them of the benefit of continuous serv ice
As they are not being paid equal wages at par with regular employees this offends their right to equality of pay under article 14 and such action is contrary to the provi sions of article 39
The respondent had raised several disputed questions of fact which needed elaborate investigation
This Court by its order dated January 27 1989 after heating the counsel on either side directed the Industrial Tribunal at Delhi to examine the contentions of the petitioners and the stand taken by the respondent on all issues after providing full opportunity to the parties of hearing including leading of evidence oral and documentary and to make a report to the Registry of this Court within six months
Pursuant to the above direction the Industrial Tribunal afforded reasonable opportunity to both parties
It would appear that both parties agreed that oral evidence need not be 516 adduced though respondent is now disputing that fact and both the parties filed documentary evidence
The Tribunal held 12 sittings heard the counsel considered the record and submitted its report dated September 15 1989
The respondent has filed its objections to the report
We have heard learned counsel for the petitioners and Shri RK Jain learned counsel for the respondent
The Tribunal found thus After taking into consideration all the facts and circumstances I come to the conclusion that all the petitionersworkmen are performing same or similar duties as are performed by the incumbents of group D  posts of the DSMDC and consequently on the principle of equal pay for equal work  enshrined in article 39d read with articles 14 and 16 of the Constitution all these workmen petitioners are entitled to equal pay for equal work in relation to the regular employees
 On the question of the nature of the work being discharged by the petitioners it found that some of the workmen are shown to have been working with designa tions such as Wages Slip Truck Loading Clerk Attendance Keeper Clerk Drill Man Office Work Stone Bricks Clerk Fitter Survey Section Pipe Fitter Operator Pump Operator Creched Check Post Clerk Permit Clerk etc which go to suggest that those workmen were performing skilled or semi skilled jobs or work of clerical nature
1t therefore suggested that the workmen with these designations may also be equated with incumbents of group D  posts However it held that their scale of pay and the entitlement to the wages should be worked out in an inquiry under section 33 C2 of the Industrial Disputes Act
It also further found that since the petitioners have been appointed way back between 1983 and 1986 they are to be regularised first 13rd of them immediately in the pay scale of Rs 196232 or the corresponding revised scale with allowances another onethird of the petitioners workmen to be regularised by April 1 1990 and the remaining one third to be regularised by April 1 1991
The workmen are entitled to one increment for every two completed years of their service counted from the date of commencement of service under the Management and by ignoring the artificial breaks created by the respondent
It also held that the dismissal of the workmen without following the rule of last come first go is an unfair labour practice arbitrary and discriminatory
It also held that the justification for not regularising the service of the petitioners namely unlikelihood of the extension of the mining lease after its expiry was believed by the subsequent advertisement calling applications for filling up the vacan cies
Accordingly it held that non regularisation due to uncertainly of the contract is only a pretence and is not valid in law
It also held that 517 though some of the persons like SShri Chander Pal Pawar Lok Nath Rai and Dinesh Kumar are eligible to hold the post of Assistant Gr
III and their reversion for lack of requi site educational qualification is discriminatory arbitrary and is an abuse of power by the Management
Accordingly it suggested the framing of a scheme for regularising the services of all the petitioners
Shri RK Jain learned counsel for the respondent has vehemently assailed the tenability of all the recommen dations
It is his further contention that the respondent did not agree to dispense with adducing oral evidence and despite the direction of this Court to submit a preliminary report the Tribunal is wrong in stating that the respondent agreed that the Tribunal would send the final report
He disputed the findings on merits pointing out various conten tions raised by the respondent in its pleading objections and the documents filed before the Tribunal
It is now settled law that the statement of facts recorded by a Court or Quasi Judicial Tribunal in its proceedings as regards the matters which transpired during the hearing before it would not be permitted to be assailed as incorrect unless steps are taken before the same forum
It may be open to a party to bring such statement to the notice of the CourtTribunal and to have it deleted or amended
It is not therefore open to the parties or the counsel to say that the proceedings recorded by the Tribunal are incorrect
The further contention that the respondent did not agree to dispense with the adduction of oral evidence and that the report should be the preliminary report cannot be counte nanced
Accordingly we hold that it is no longer open to the respondent to say that it has not consented to dispense with adducing oral evidence and to the Tribunal submitting its final report instead of a preliminary one as directed by this Court
During the pendency of these writ petitions 16 workmen were retrenched
Shri RK Jain learned counsel appearing for the respondent has agreed that if thereis work and any of these sixteen persons reports for duty work shall be provided
This Court further directed to pay the petitioners at the rate of Rs25 per day
The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them
The indis putable facts are that the petitioners were appointed be tween the period 1983 and 1986 and eversince they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them
Practical experience would always aid the person to effec tively discharge the 518 duties and is a sure guide to assess the suitability
The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with but it is so at the time of the initial entry into the service
Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications
In our view three years  experience ignoring artificial break in serv ice for short periodperiods created by the respondent in the circumstances would be sufficient for confirmation
If there is a gap of more than three months between the period of termination and re appointment that period may be exclud ed in the computation of the three years period
Since the petitioners before us satisfy the requirement of three years  service as calculated above we direct that 40 of the senior most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regula rised in a phased manner before April 1 1991 and promoted to the next higher post according to the standing orders
All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties and are entitled to the scale of pay and all allowances revised from time to time for the said posts
We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately
Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts
The respondent is directed to deposit a sum of Rs 10000 in the Registry of this Court within four weeks to meet the remu neration of the Industrial Tribunal
The writ petitions are accordingly allowed but without costs
PSS Petitions allowed


Summary:
The detenu was arrested on May 2 1989
On the same date a bail application was moved on his behalf
On May 3 1989 he was detained under section 8 of the 
The detention order stated that the detenu was likely to be bailed out and there was every likelihood that after coming out of jail he would again indulge in criminal activ ities injurious to the maintenance of essential services and supplies required for public life
The facts referred to in the grounds of detention were that on the basis of a com plaint of theft of electric wire lodged on February 15 1989 an FIR was registered under section 379 IPC against three per sons J  S  and M 
Some of the stolen material was recovered from the house of J  on March 3 1989 and on the information provided by him about the purchase of such material the factory of the detenu was raided on the same day
There M  stated to be the servant of the detenu was found in possession of about 20 kg
of melted electric wire and that was seized under a recovery memo
In the confes sional statement made by M  and recorded in the recovery memo itself he had stated that he had purchased the elec tric wire from J  and S  and that he had melted and sold the same to the detenu
These facts led the detaining au thority to conclude that there was inherent criminal propen sity in the detenu
Detenu s representation was rejected by the Advisory Board
The Order was confirmed by the Govern ment under section 121 of the Act
In the writ petition seeking to quash the order of detention it was contended that there was no evidence of detenu s complicity with the crime linking him with the recovery of melted wire that the criminal case filed under section 411 IPC was the first crime alleged against him that he had no past criminal record from which it could be inferred that he was likely to indulge in such activity in future and that there was an 480 unexplained delay from the date of the alleged crime and the date of detention vitiating the satisfaction and the deten tion order itself
Allowing the writ petition the Court HELD 1
The detaining authority though can take into account the possibility of the detenu being released on bail in the criminal proceedings have to be satisfied having regard to his past activities or by reason of the credible information or cogent reasons that if he is enlarged on bail he would indulge in such criminal activities
487B In the instant case except the bald statement that the detenu would repeat his criminal activities after coming out of the jail there were no credible information or material or cogent reasons apparent on the record to warrant an inference that the detenu if enlarged on bail would indulge in such criminal activities which were prejudicial to the maintenance of essential services
There must be something more than what was found in the record to come to the con clusion that this was not a case of solitary incident but a case of the detenu indulging in business of receiving stolen electric wires
Furthermore the detention order seems to have been made in order to supplant the criminal prosecution which was not permitted
487B D Ramesh Yadav vs District Magistrate Etah  Rameshwar Shaw vs District Magistrate Burdwan  Anr
   Kartic Chandra Guha vs The State of West Bengal  Ors  Alian Mian vs District Magistrate Dhanbad  Ors 1983 4 SCC 301 Smt
ShashiAg garwal vs State of U P  Ors  and N Meera Rani vs Government of Tamil Nadu  Anr   referred to
In spite of the fact that the recovery statement itself was made as early as on March 3 1989 no action was taken against the detenu till May 3 1989
Nothing more was stated in the detention order
The delay had also not been satisfactorily explained in the counter statement of the respondents
The ground therefore could not be a proximate cause for a sudden decision to take action under the Nation al Security Act and this also vitiates the order
487F G