IN THE COURT OF SH. [ENTITY]: POIT, KARKARDOOMA COURTS, DELHI I.D. No 62/10 [ENTITY] Sh. [ENTITY] s/o Sh. Kalayan Singh represented by MCD General Mazdoor Union, Room No.95, Barracks No.1/10, Jam Nagar House, New Delhi 110011. Vs. Management M/s Municipal Corporation of Delhi, through its Commissioner, Town Hall, Chandni Chowk, Delhi 110006. Date of institution 06.03.2010 Date of reserving award 28.07.2014 Date of award 05.08.2014 Corrigendum Ref: F.24 (126)/ND/387/2006/Lab/1418-22 dated 05.10.10 AWARD 1.
[ENTITY] has raised the present industrial dispute through Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of reference:-
1. Whether the demand of Sh. [ENTITY] s/o Sh. [ENTITY], muster roll workman for regularisation on the post of Beldar in proper pay scale is justified and if so, from which date and what directions are necessary in this respect?
2. Whether the demand of said workman for wages as is admissible to his regular counter parts for his muster roll employment is justified, and if so, what directions are necessary in this respect?"
2. Statement of claim has been filed by the workman, wherein it is stated that workman was employed with management as muster roll Beldar since long time and he has been posted under Executive Engineer Division No.3 (Works) under S.P. Zone of MCD w.e.f. 26.07.2000 and was paid his wages as unskilled workman as muster roll Beldar; that workman has been performing his duties for more than ten years but he has not been regularised; that daily rated workers performing the same and similar duties of unskilled workmen have been getting their wages in proper pay scales, but the workman has been discriminated; that the management is covered under the Modal Standing Order under the Industrial Employment ([ACT] and thus, the workman is entitled to permanent status after completion of 90 days of service; that the management has adopted policy of CPWD for grant of equal pay for equal work till their regularisation; that the workman is also entitled to equal pay from the management; that as per the policy of management muster roll employees engaged during the period from 1.4.2000 to 31.3.2003 have been regularised w.e.f. 1.4.2006.
3. It is prayed that workman be regularised as Beldar w.e.f. 1.4.2006 in the pay scale of Rs.2550-3200 with consequential benefits. It is also prayed that time scale plus allowances, except increment, atleast, from the date of 26.7.2000 to 31.3.2006 be also awarded.
4. In the written statement filed by the management, it is stated that present dispute is not an industrial dispute as it is not properly espoused by the Union; that no demand notice was served upon the management; that engagement of claimant on daily wages is void ab-initio as the claimant has gained the employment with the management on daily wages on the basis of a forged and fabricated transfer application containing fake recommendation dated 27.7.07; that claimant presented the said letter showing himself transferred from Ward No.C-45, Division XV, West Zone to Division III, S.P. Zone and on the basis of same he was allowed to join by the Executive Engineer, Divison III on 11.7.2000 by way of endorsement on the aforesaid transfer request; that on verification of the said transfer letter by the management, it was found to be forged; that the claim of the workman for regularisation, being based on the forged transfer letter, is baseless; that claim fo the workman for 'equal pay for equal work' is also not maintainable as the employees appointed on daily wages cannot be equated with workers in regular service. Other contentions made in the statement of claim have been denied and dismissal of the same has been prayed for.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 01.11.2011 :-
1. Whether present dispute is an industrial dispute as defined in [SECTION] of [ACT]? OPW
2. Whether any notice of demand was served upon the management, of so, its effect? OPW
3. As per terms of reference.
6. [ENTITY] examined himself as WW 1. In his affidavit, he has reiterated more or less the contentions made in statement of claim.
7. In cross-examination, WW 1 has deposed that he was engaged on muster roll / daily wagers in division XV West Zone, MCD. It is deposed that no appointment letter was issued to him. He has deposed that he worked with division XV west zone from 15.1.95 to 25.7.2000. He cannot tell the names of the Jr. Engineers, Asst. Engineer, Ex. Engineer of the west zone under whom he has worked. It is denied that he never worked in the west zone. It is deposed that no office order of transfer was issued transferring him to the S.P. Zone. He does not have any record to show that he worked with division XV west zone. It is denied that management has not considered his name for regularisation as he worked with S. P. zone on the basis of misrepresentation and fraudulent documents.
8. [ENTITY] has also examined Sh. [ENTITY], President of MCD General Majdoor Union as WW 2. In his affidavit, filed by way of evidence, he has produced copy of espousal/sponsorship dated 29.4.06 as Ex. WW2/1 and copy of registration certificate of the Union as Ex. WW2/2.
9. In his cross-examination, he has deposed that the meeting to espouse the present cause was held by the union on 29.4.06. It is deposed that present union has about 7-8 thousand members. It is denied that for raising of any dispute, the support of massive majority of the members of the union is required. It is denied that cause of workman has not been espoused by the massive majority. It is denied that the dispute of the workman suffers from latches.
10. Management has examined Sh. [ENTITY], Executive Engineer as MW 1. In his affidavit, he has, more or less, reiterated the contents of written statement filed by management. In his cross-examination, he has deposed that he joined S.P. Zone on September, 2007 and workman has been working in this division as per record. It is deposed that workman has been working on muster roll from 27.7.2000. It is deposed that working hours and duties of muster roll worker and regular worker on the categories of Beldar are the same.
11. I have heard arguments from Sh. [ENTITY], Ld. AR for the workman and Sh. [ENTITY] Ld. Counsel/AR for management. I have carefully gone through record of the case. My findings on the issue are as under :-
12. Findings on issues no.1 Issue no.1 is : Whether present dispute is an industrial dispute as defined in [SECTION] of [ACT]? OPW
13. Management in this regard has taken preliminary objection in the written statement that present dispute is not an industrial dispute as it is not properly espoused by the Union.
14. [SECTION] of [ACT] provides as below:-
"industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, or any person;
15. In [PRECEDENT], it has been held as under:-
It is clear that even a dispute between an employer and his workmen which is connected with non-employment of any person can be an industrial dispute. The beneficiary of the claim need not be a workman of the employer at the time of raising the dispute. A dispute can be raised by the workmen of the employer even in respect of the non-employment of any person, who is not his workman at the material time.
16. [ENTITY] has examined Sh. [ENTITY], President of MCD General Majdoor Union as WW 2. In his affidavit, filed by way of evidence, he has produced copy of espousal/sponsorship dated 29.4.06 as Ex. WW2/1 and copy of registration certificate of the Union as Ex. WW2/2. There is noting to the contrary in cross-examination. In view of these specific documents, it is held that claim of the workman has been properly espoused by the Union and thus, present dispute is an industrial dispute as defined in [SECTION] of [ACT]. Issue no.1 is decided accordingly.
17. Findings on issue no.2 Issue no.2 is : Whether any notice of demand was served upon the management, of so, its effect? OPW
18. Perusal of record shows that workman has failed to prove that he sent any demand notice to the management.
19. In [PRECEDENT], Hon'ble Supreme Court after referring to [SECTION] of the [ACT], which defines "Industrial Dispute", held as below:
"A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non-employment or terms of employment or with the conditions of labour of any person, there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into-existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because Section forbids going on strike without giving a strike notice."
20. Though, no demand notice has been served upon the management, yet in view of above judgment, it will have no material effect on the award as no such notice was required to be given. Issue no.2 is decided accordingly.
21. Findings on issue no.3 Issue no.3 is As per terms of reference. Terms of reference are (1) Whether the demand of Sh. [ENTITY] s/o Sh. [ENTITY], muster roll workman for regularisation on the post of Beldar in proper pay scale is justified and if so, from which date and what directions are necessary in this respect? (2) Whether the demand of said workman for wages as is admissible to his regular counter parts for his muster roll employment is justified, and if so, what directions are necessary in this respect?"
22. It is stated by management in the written statement that engagement of claimant on daily wages is void ab-initio as the claimant has gained the employment with the management on daily wages on the basis of a forged and fabricated transfer application. Management has proved copy of said transfer application of workman as Ex. MW1/1, wherein workman has mentioned that he has been working at Ward No.C- 45 since the years 1995 and requested his transfer from Division XV to Division III. Management has also proved on record copy of reply to show cause notice submitted by workman to the management as Ex. MW1/5, wherein also workman has mentioned that he was initially employed by Division XV West Zone as Belar w.e.f. 15.1.95. Moreover, [ENTITY] in his cross-examination also has deposed that he worked with division XV west zone from 15.1.95 to 25.7.2000. At the same time he has also deposed in his cross-examination that he cannot tell the names of the Jr. Engineers, Asst. Engineer, Ex. Engineer of the west zone under whom he has worked. He has also deposed that he does not have any record to show that he worked with division XV west zone.
23. Since, workman is not able to tell the names of officers of the west zone under whom he has worked and he does not have any record to show that he worked with division XV west zone, this Tribunal is of the considered opinion that the workman has never worked in division XV west zone as stated by him in his cross-examination, in his transfer application and in his reply to show cause notice. Hence, submission of management that workman has based his claim on forged transfer application, is prima facie found to be correct.
24. Further, in the said reply to show cause notice, it has been stated by workman that there is a procedure in MCD to recruit by open market. If, for the sake of arguments, submission of the workman is found to be correct, it is worth noting that workman has not been able to prove on record that he undergone any process of recruitment by open market i.e. submission of application against an advertisement for vacancy, participation in open examination for any post or participation in interview etc. Hence, objection raised by the workman in his reply to show cause notice is baseless.
25. In view of above discussion, I am of the considered opinion that the workman has based his claim for regularisation on false ground that he worked in West Zone of MCD, as stated by him in his forged transfer application and in his cross-examination also. Moreover, regularisation cannot be claimed as a matter of right. Reference in this regard may be made of the judgments of Hon'ble Supreme Court titled as [PRECEDENT] and [PRECEDENT], (Constitution Bench Judgment), wherein it was held that employment of daily wager/ contractual workers confers no right of permanent employees. Secondly, it was held that contractual employee working on less wages than regular employees is also not illegal because when they are employed, they know that they were being employed as daily wager purely on temporary basis. It was also held that permanent absorption of daily wager can not be claimed as a matter of right and set of persons can not be preferred over vast majority depriving them of their opportunity to compete for public employment. It was also observed that temporary employees appointed in violation of constitutional scheme do not have an enforceable legal right to be permanently absorbed nor the court is competent to direct Government to make them permanent. It was further held that Govt. should frame one time policy for regularization of the workmen who had been working since long. Similar observations were also made in [PRECEDENT].
26. Moreover, in [PRECEDENT], it was observed that the appellant was not entitled to claim that she should have been deemed to have been regularised as she had been working without break for nine years.
27. In view of above proposition of law and above analysis of facts of the case, it is held that demand of workman for regularization in proper pay scale and allowances is not justified.
28. As regards demand of workman made vide item no.2 of terms of reference regarding wages as is admissible to his regular counter parts for his muster roll employment, in [PRECEDENT], it has been opined that daily-wagers should not be equated with regular workman and can at best claim payment of minimum wages only.
29. In view of above proposition of law, claim of workman for 'equal pay for equal work' does not survive.
30. In view of above discussion, it is held that workman is not entitled to regularization and his claim for equal pay for equal work is also rejected. Thus, he is not entitled to any relief in the present claim. Issue no.3 and terms of reference are decided accordingly and award is passed in these terms.
31. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open Tribunal on 05.08.2014 ([ENTITY]) Presiding Officer, Industrial Tribunal Karkardooma Courts, Delhi.