* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on:14 March,2024
st
Pronounced on: 31 May, 2024
+ W.P.(C) 8391/2020 and CM APPL. Nos. 27227/2020 &
7192/2024
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Mr.Arun Birbal, Advocate
versus
VISHANT KUMAR KHOLIYA AND OTHERS ..... Respondent
Through: Mr. Vinay Kumar Garg Senior
Advocate with Mr. Rajiv Agarwal,
Ms. Meghna De, Ms. L.Gangmei,
Mr. N. Bhushan and Ms. Surbhi,
Advocates
+ W.P.(C) 3339/2024 and CM APPL. No.13752/2024
MUNICIPAL CORPORATION OF DELHI ..... Petitioner
Through: Mr.Divya Swamy, Standing
Counsel MCD with
Mr.Yagyawalkya Singh and
Ms.Akriti Singh, Advocates
versus
PRADEEP RANA & ORS. .....Respondents
Through: Mr. Vinay Kumar Garg Senior
Advocate with Mr. Rajiv Agarwal,
Ms. Meghna De, Ms. L.Gangmei,
Mr. N. Bhushan and Ms. Surbhi,
Advocates
+ W.P.(C) 16307/2023 and CM APPL. No.65674/2023
MUNICIPAL CORPORATION OF DELHI ..... Petitioner
Through: Ms.Shriparna Chatterjee, SC with
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Digitally Signed By:SARIKA
BHAMOO VERMA
Signing Date:05.06.2024
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Mr.Soumitra Chatterjee and
Mr.Manish, Advocates
versus
PRAMOD BHAN AND ORS ..... Respondents
Through: Mr. Vinay Kumar Garg, Senior
Advocate with Mr. Rajiv Agarwal,
Ms. Meghna De, Ms. L.Gangmei,
Mr. N. Bhushan and Ms. Surbhi,
Advocates
+ W.P.(C) 16584/2023 and CM APPL. No. 66809/2023
MUNICIPAL CORPORATION OF DELHI ..... Petitioner
Through: Ms.Sriparna Chatterjee, SC with
Mr.Soumitra Chatterjee and
Mr.Manish, Advocates
versus
MANISH KUMAR AND ORS ..... Respondents
Through: Mr. Vinay Kumar Garg, Senior
Advocate with Mr. Rajiv Agarwal,
Ms. Meghna De, Ms. L.Gangmei,
Mr. N. Bhushan and Ms. Surbhi,
Advocates
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
J U D G M E N T
1. The present batch of petitions under Articles 226 and 227 of the
Constitution of India is arising out of various awards of the learned
Industrial Tribunal wherein the claim of the respondent workmen seeking
regularization has been decided in their favour and against the petitioner.
2. Since, the facts as well as the legal issues involved in the present
batch of petitions are similar, therefore, this Court has culled out the facts
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BHAMOO VERMA
Signing Date:05.06.2024
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and submissions out of the writ petition bearing W.P.(C) 8391/2020 titled
South Delhi Municipal Corporation Vs. Vishant Kumar Kholiya And
„
Others
‟ for the disposal of the present batch of petitions.
Factual Matrix
3. The instant petition has been filed on behalf of the petitioner under
Article 226 of the Constitution of India seeking setting aside of the
th
Award dated 13 Novemb
er, 2019 (“impugned Award” hereinafter)
passed by the learned Presiding Officer, Industrial Tribunal, Rouse
Avenue Courts Complex, New Delhi (“Industrial Tribunal” hereinafter),
in case bearing I.D No. 58/2016.
4. The petitioner i.e., South Delhi Municipal C
orporation (“petitioner
the year 2012
entity” hereinafter) was a statutory body that emerged in
from the trifurcation of the Municipal Corporation of Delhi by way of
amending the Delhi Municipal Corporation Act, 1957. The petitioner
entity is entrusted with the task of maintaining municipal services within
the territorial jurisdiction as demarcated to it after the abovesaid
trifurcation.
5. In the year 2010, the petitioner entity engaged the respondents
o work at the
(“respondent workmen” hereinafter) on contractual basis t
posts namely „Assistant Malaria Inspector‟ (“AMI” hereinafter) and
„Assistant Public Health Inspector‟ (“APHI” hereinafter).
6. Thereafter, in the year 2014, the respondent workmen filed a
statement of claim before the Labour Department, Government of NCT
of Delhi thereby, claiming regularization to the posts of AMI and APHI
from the date of their initial appointment and differential in wages for the
said period.
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BHAMOO VERMA
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7. During the pendency of the abovesaid dispute, the petitioner entity
th
on 16 April, 2015 through the Delhi Subordinate Staff Selection Board
issued an advertisement inviting applications for
(“DSSB” hereinafter),
appointment to the post of AMI and APHI.
8. Pursuant to the above, the respondent workmen moved another
application before the Industrial Tribunal, Karkardooma Courts, Delhi, in
I.D No.106/2015 seeking status quo and an interim stay on the abovesaid
recruitment and to reserve certain seats for the respondent workmen
th
herein, which was dismissed vide order dated 4 February, 2019.
9. Subsequently, the Deputy Labour Commissioner, Government of
th
NCT of Delhi, vide reference dated 14 May, 2015 bearing no.
F.24/(266)/Lab./SD/2015/9758, referred the industrial dispute between
the respondent workmen and the petitioner entity in case bearing I.D No.
58/2016 before the Industrial Tribunal in the following terms:
"Whether the demand of the workmen Sh. Vishant Kumar
Kholiya& 38 Ors. (As per Annexure-A) for regularization of
their services on the post of Assistant Malaria Inspector/
Assistant Public Health Inspector with retrospective effect
from the initial date of their joining into the employment
along with difference of salary on the principle of "Equal
Pay for Equal Work" from the initial date of their joining
onwards, is legal and justified; and if so, to what relief are
they entitled and what directions are necessary in this
respect?"
10. In the meanwhile, the respondent workmen, being aggrieved by the
th
order dated 4 February, 2019 passed in I.D No.106/2015, filed a writ
petition bearing W.P (C) no. 2203/2019, wherein, this Court, vide order
th
dated 6 March, 2019, held that since the dispute is pending adjudication
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before the learned Tribunal, no order is required to be passed in the
present petition. It was also held that the services of the respondent
workmen shall not be altered without complying with the provisions of
Section 33 of the Industrial Disputes Act, 1947 (“the Act” hereinafter)
during the pendency of the said dispute.
11. The learned Industrial Tribunal, upon completion of pleadings, on
th
8 November, 2016, framed four issues, and thereafter, passed the
th
impugned Award dated 13 November, 2019
(“impugned Award”
hereinafter), holding that the respondent workmen are entitled to be
regularised with the petitioner entity to the posts of AMI and APHI from
the date of their initial appointment along with entitlement to difference
in wages as per the principle of equal pay for equal work.
12. Aggrieved by the aforementioned Award, the petitioner entity has
preferred the instant writ petition under Article 226 of the Constitution of
India seeking setting aside of the same.
SUBMISSIONS
13. Learned Counsel appearing on behalf of the petitioner entity
submitted that the learned Industrial Tribunal erred in passing the
impugned Award as the same has been passed without taking into
consideration the entire evidence, facts and circumstances of the present
case, and therefore, the same is liable to be set aside.
14. It is submitted that the learned Industrial Tribunal erred in granting
regularization to the respondent workmen as the appointment of the
respondent workmen to the pots of AMI and APHI was carried out by
way of a newspaper advertisement which categorically stipulated that the
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said engagement is made purely on contractual basis and shall hold
validity until regular appointments to the said posts are effectuated.
15. It is further submitted that since the newspaper advertisement
expressly stipulated that the appointment was contractual, the respondent
workmen were well versed with the terms of their appointment thus,
precluding them from seeking regularization to the posts on which they
were temporarily engaged.
16. It is further submitted that at the time of appointment also the
respondent workmen signed their contract of appointment and undertook
to not seek regularisation to the said posts thus, at this stage, they cannot
turn around and violate the same.
17. It is submitted that the learned Industrial Tribunal failed to take
into consideration the fact that since the term of appointment were
expressly stated that the engagement was purely on contractual basis, a
huge number of interested candidates would have applied for the said
posts had they known that their services would one day be subject to
regularization. Thus, the learned Industrial Tribunal has erred as the said
impugned Award is against public interest as the rights of those who were
not before the Tribunal have been prejudiced by the passing of the
impugned Award.
18. It is submitted that at the time of appointment it was made clear to
the respondent workmen that their appointment is being effectuated
purely on contractual basis for a period of six months which is subject to
increase as per the requirements.
19. It is further submitted that the procedure of appointment did not
entail a robust mechanism consisting of a written examination and/or an
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interview thus, the said appointment does not bestow upon them the right
to be regularised.
20. It is submitted that the learned Industrial Tribunal erred in law by
holding that the respondent workmen are entitled to be regularized as
they are subject to unfair labour practices by the petitioner entity. It is
submitted that the petitioner entity had not resorted to any unfair labour
practices rather abided by the terms of initial engagement.
21. It is submitted that the appointment of respondent workmen was a
stopgap arrangement to cater to the period until regular appointment is
effectuated by the petitioner entity via a recruitment procedure carried out
by the DSSB.
22. It is submitted that the petitioner entity had not indulged into unfair
labour practices and the intention was never to violate the provisions
contained under Section 2(ra) read with Item 10 of V Schedule of the Act
rather, the said appointment was a stopgap arrangement in public interest
until regular appointment to the said posts were effectuated.
23. It is submitted that the learned Industrial Tribunal has erred in law
by not taking into consideration the ratio of landmark cases namely
1
Secretary, State of Karnataka Vs. Uma Devi ; Oil and Natural Gas
2
Corporation Vs. Krishan Gopal &Ors. and University of Delhi vs
3
Delhi University Contract Employees .
24.
It is submitted that the Central Administrative Tribunal (“CAT”
hereinafter) has time and again held that the similarly placed colleagues
1
(2006) 4 SCC 1
2
(2020) 3 SCALE 272
3
(2021) 16 SCC 71
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of the respondent who were also engaged on contractual basis at the same
post vide the advertisement, are entitled to be regularised.
25. Therefore, in light of the foregoing submissions, the learned
counsel appearing on behalf of the petitioner entity prays that the instant
petition may be allowed, and the relief as prayed, may be granted.
(on behalf of the respondent)
26. Per Contra, Mr. Vinay Kumar Garg, learned senior counsel
appearing on behalf of the respondent workmen vehemently opposed the
instant petition submitting to the effect that the instant petition is
misconceived, and the impugned Award has been passed after taking into
consideration the settled position of law and the entire evidence on record
hence, the same is liable to be dismissed.
27. It is submitted at the outset that the instant petition is nothing but a
gross misuse of law as is it does raise a substantial question of law rather
the petitioner entity intends to harass the respondent workmen and deny
the relief as granted by the learned Industrial Tribunal by way of
extended litigation.
28. It is further submitted that the petitioner under the garb of the writ
jurisdiction is raising fresh pleas which were not asserted before the
learned Industrial Tribunal, therefore, the instant petition is liable to be
dismissed on this ground alone.
29. It is submitted that the instant writ petition is not maintainable as
the petitioner entity is seeking re-appreciation of the findings recorded by
the learned Industrial Tribunal which is impermissible in law as the
standard of interference by a writ court is very limited and re-appreciation
of evidence cannot be done under the writ jurisdiction. To substantiate the
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same, the learned counsel for the respondent workmen placed reliance
upon the judgments passed in Syed Yakoob vs K.S. Radhakrishnan
4 5
&Ors. and MCD vs Asha Ram &Anr. .
30. It is submitted that the averments made on behalf of the petitioner
entity that the respondent workmen being engaged on purely contractual
basis therefore, the learned Industrial Tribunal ought not to have granted
the relief of reg
ularization is bad in the eyes of law as the Hon‟ble
Supreme Court has time and again held that the Tribunals are entrusted
with the power to make appropriate awards in determining industrial
disputes brought before it. To substantiate the same, the learned counsel
for the respondent workmen placed reliance upon the judgments passed in
6
Bharat Bank Ltd. v. Employees of Bharat Bank Ltd ; Bidi, Bidi
7
Leaves' and Tobacco Merchants Association. Vs The State of Bombay
8
and ONGC vs Krishan Gopal & Ors .
31. It is submitted that the respondent workmen have been
continuously working with the petitioner entity at the post of AMI and
APHI for the past ten years which is in contradiction to the stance taken
by the petitioner entity i.e., the respondent workmen were engaged for
exigencies of work as a stopgap mechanism until regular appointment
was effectuated.
32. It is submitted that it an admitted fact on account of the witness
appearing on behalf of the petitioner entity that the work carried out by
the respondent workmen is that of regular nature.
4
AIR 1964 SC 477
5
117 (2005) DLT 63
6
(1950) LLJ 921, 948-49 (SC)
7
AIR 1962 SC 486
8
2020 SCC online SC 150
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BHAMOO VERMA
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33. It is further submitted that the contract of appointment has been
used by the petitioner entity to violate the statutory rights to which they
are entitled to under the provision of the Act.
34. It is submitted that the learned Industrial Tribunal has rightfully
held that the petitioner entity had indulged into unfair labour practices by
denying the respondent workmen the wages and status of regular
employees thus, violating the provisions contained under Section 2(ra)
read with Item 10 of V Schedule of the Act. To substantiate the same, the
learned counsel for the respondent workmen placed reliance upon a
judgment passed in Chief Conservator of Forests and another v.
9
Jagannath Maruti Kondhare and Amrish Kumar v. Indian Institute of
10
Mass Communication .
th
35. It is submitted that this Court, vide order dated 5 January, 2024,
directed the petitioner to file an affidavit stating therein, whether the
procedure for filling up the post on which the respondent workmen are
working has been completed or not.
36. It is further submitted that the petitioner entity, vide the said
affidavit, has stated that since the year 2014, a total of 85 posts have been
filled wherein, 40 AMI and 45 APHI have been appointed and still 177
posts of AMI and 78 posts of APHI are vacant, therefore, the said
conduct clearly shows that the intention of the petitioner entity is to seek
regular nature of work from people such as the respondent workmen by
engaging them on contractual basis and granting them lesser wages.
9
AIR 1996 SC 2898
10
2020 SCC Online Del 1915
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37. It is submitted that the averment made by the learned counsel for
the petitioner entity that the impugned Award is defective and is against
the ratio of the judgement passed in Secretary, State of Karnataka Vs.
Uma Devi (Supra) is untenable as the facts and circumstances of the
instant matter are different and also that the true intent of Uma Devi
(Supra) was not to give a free hand to the employer to commit unfair
labour practices against the workmen. To substantiate the same, the
learned counsel for the respondent workmen placed reliance upon the
judgments passed in Sheo Narain Nagar & Ors vs State of Uttar
11
Pradesh & Ors and The Project Director Department of Rural
Development Government of NCT of Delhi v. Its workman through
12
Delhi Prashashan Vikas Vibhag Industrial Employees Union .
38. Therefore, in light of the foregoing submissions the learned
counsel appearing on behalf of the respondent workmen prayed that the
instant petition, being devoid of any merit is liable to be dismissed.
ANALYSIS AND FINDINGS
39. The petitioner has approached this Court seeking setting aside of
th
the impugned Award dated 13 November, 2019 passed by the learned
Industrial Tribunal in I.D No. 58/2016 whereby, the respondent workmen
were held to be entitled for regularization at the posts of AMI and APHI
with the petitioner entity from the date of their initial appointment and
were also entitled to difference in wages as per the principle of equal pay
for equal work.
11
(2018) 13 SCC 432
12
2019 SCC Online Del 7796
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40. It is the case of the petitioner entity that the impugned Award is
bad in law as the same has been passed without taking into consideration
the entire evidence, facts and circumstances of the case. It is contended
that learned Industrial Tribunal erred in holding that the respondent
workmen fall within the definition of Section 2(s) of the I.D Act and that
the Hon‟ble Supreme Court has held that the contractual appointment
presupposes that no legitimate expectation for regularization can be
sought. It is contended that regularization is not a vested right and merely
because an employee has been in long and continuous employment, it
does not entitle him to seek regularization.
41. It is further contended that the learned Industrial Tribunal erred in
law by disregarding the applicability of the ratio of landmark cases
namely Secretary, State of Karnataka Vs. Uma Devi (Supra) which is
the benchmark judgement when it comes to regularization. It is submitted
that the learned Industrial Tribunal erred in law by premising its
l
reasoning on the principle of „equal pay for equal work‟ as contractua
and regular appointment do not stand on an equal footing and form two
distinct class of employees. It is also contended that the Tribunals must
not interfere with the administrative policies of the management unless it
observes gross violation of the principles as enshrined in the Constitution
of India as the management is entrusted with the power to frame and
formulate its own policies.
42. In rival contentions, the respondent workmen vehemently opposed
the instant petition submitting to the effect that the instant petition is
misconceived as it does not raise a substantial question of law and the
impugned Award has been rightfully adjudicated. It is contended that it is
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an admitted position on behalf of the management witness that the
respondent workmen have been working against the vacant posts and
discharging their duties similar to those of regular Field Workers however
have been drawing wages as per the Minimum Wages Act.
43. It is further contended that the instant petition is nothing but gross
misuse of process of law as the standard of interference by a writ court is
very limited and re-appreciation of evidence cannot be done under the
writ jurisdiction. It is contended that the learned Industrial Tribunal has
rightfully held that the respondent workmen have been subjected to unfair
labour practice as they have been working as contract employees for
years on lesser salary. It is further contended that the Hon‟ble Supreme
Court has reiterated time and again that the Tribunals are entrusted with
the powers to make appropriate awards in determining industrial disputes
brought before it thus it cannot be contended by the petitioner entity that
the learned Tribunal is not vested with powers to grant regularization to
contractual employees.
44. It has been asserted on behalf of the respondent workmen that they
have been working for the petitioner entity since almost last ten years and
since they have been working for a prolonged period of time, they are
entitled for the regularization of their services. Further, it has also been
contended that the petitioner entity has engaged in unfair labour practice.
In the affidavit filed by the petitioner entity it has been categorically
stated that since the year 2014, a total of 177 posts of AMI and 78 posts
of APHI are vacant and only 85 posts have been filled wherein 40 AMI
and 45 APHI have been appointed.
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BHAMOO VERMA
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45. The common issue which falls for consideration before this Court
is whether the respondent workmen are entitled to the regularisation of
their services as held by the learned Tribunal.
46. The impugned award passed in the is reproduced herein below:
19. Findings on issue no.1
“
Issue no.1: Whether there exists relationship of employer
and employee between the parties?
OPW.
It is seen from the record that relationship of employer and
employee, between the parties, has not been disputed as it
has been admitted by the management that the workmen are
employed as Assistant Malaria Inspector (AMI) and
Assistant Public Health Inspector (APHI) with the
management though on contract basis and accordingly, the
factum of existence of relationship of employer and
employee between the management and the workmen, who
have appeared in workmen evidence, as abovesaid, stands
proved, on record. The instant issue is accordingly, decided
in favour of the workmen and against the management.
20. Findings on Issue no.2.
Issue no.2: Whether the claim of the workmen has been
properly espoused by the Union? OPW
It is seen from the record that to prove the factum of
espousal of the instant dispute of the workmen with the
management, the workmen have led the evidence of WW40
Sh. Surender Bhardwaj, General Secretary of the Municipal
Employees Union in workmen evidence by way of his
affidavit by way of evidence, Ex.WW40/A, who has relied
upon a document, already Ex.WW1/6 in the evidence of
workman/ WW1 Sh. Vishant Kumar Kholiya, also relied
upon by the other workmen/ WWs WW1 to WW11, WW13 to
WW37 and WW39, in their evidence by way of their
examination-in-chief in workmen evidence, on record, being
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copy of resolution dated 28.02.2014 of espousal of the
instant dispute of the workmen qua the management by the
concerned Union viz. Municipal Employees Union (Regd.)
passed in the meeting of its executive committee held, in this
regard, on the said date, presided over by the WW 40 Sh.
Surender Bhardwaj in his capacity as General Secretary of
the said Union as on the said date and issued under his
signature, as deposed by him, i.e.
"1. It is unanimously resolved to raise an industrial dispute
in favour of S/Sh. Vishant Kumar Kholiya and 38 others
working as Assistant Malaria Inspector/ Assistant Public
Health Inspector, Public Health Department, South Delhi
Municipal Corporation, who are members of our Union for
securing their regularisation in services on the post of AMI
& APHI, with retrospective effect from the initial date of
their joining into the employment and to pay them entire
difference to salary on the principle of "equal pay for equal
work" from the initial joining onwards."
As also, it is seen from the cross-examination of the said
WW 40 Sh. Surender Bhardwaj, General Secretary of the
Municipal Employees Union (Regd.) on behalf of the
management in workmen evidence, as abovesaid, on record,
or even in the management evidence of its MW1 Sh. Rajesh
Kumar, Administrative Officer (Public Health) of the
management that the management has not been able to
prove any document, on record, in rebuttal to the deposition
of the WW40 Sh. Surender Bhardwaj, General Secretary of
the Municipal Employees Union of the workmen towards the
factum of espousal of the instant dispute of the workmen with
the management, vide Ex.WW1/6, in its respect, as
abovesaid, which is copy of resolution of espousal of ·the
instant dispute of the workmen by the concerned Union in
the relevant meeting of its executive committee held, in this
regard, on 28.02.2014, apart from suggestions in bald denial
thereof and thereby has not been able to disprove the said
document, in any manner whatsoever and accordingly, the
instant dispute of the workmen qua the management is held
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to be appropriately espoused by the Union of workmen,
thereby qualifying the instant dispute as an industrial
dispute as required vide the mandatory provisions of Section
2(k) of the Industrial Disputes Act, 1947 (as amended upto
date), applicable to it for this Tribunal to seize jurisdiction
upon the same.
X X X
23. Findines on issue no.3 viz. As per terms of reference
Terms of reference are reproduced hereinbelow: "Whether
the demand of the workmen Sh. Vishant . Kumar Kholiya &
38 Ors. (As per Annexure-A) for · regularisation of their
services on the post of Assistant Malaria Inspector I
Assistant Public Health Inspector with retrospective effect
from the initial date of their joining into the employment
X X X
24. It is seen from the record that by way of their affidavits
by way of evidence of the workmen, Ex.WW1/A to
Ex.WW39/A, i.e workmen I WW1 to WW39 (except for
WW12 Sh. Nitish Parkash Pandey, who has not appeared in
workmen evidence at all and WW38 Sh. Dharmveer Meena,
who has not appeared in his cross-examination on behalf of
the management in workmen evidence), have categorically
deposed that they have been working with the management
continuously on the post of Assistant Malaria Inspector
(AMI) and Assistant Public Health Inspector (APHI)
respectively, w.e.f. the date as mentioned against their
names vide Annexure-A to the 'Order' and 'terms of
reference' of the appropriate Government in respect of the
instant dispute, as abovesaid, along with documents
Ex.WW1/1 to Ex.WW39/1 proved in workmen evidence, as
abovesaid, to which there is no effective rebuttal on the part
of the management in the cross-examination of the said
workmen witnesses in workmen evidence apart from that
they have been appointed on the said post on contract basis
initially for a period of six months each and accordingly,
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were not entitled to be regularised on the said post, which it
is seen from the record is the defence of the management to
the claim of the workmen, as abovesaid, in the instant
reference and that the management has not indulged in
unfair labour practices by continuing the employment of the
workmen with the management on the said post on
contractual basis w.e.f. the initial date of appointment of the
workmen on the same with a view to denying them the
benefits of regular employees performing the same work
with the management.
25. It is further seen from the record that in view of the claim
of the workmen against the management in the instant
dispute to the effect that they have been in continuous
employment of the management as Assistant Malaria
Inspector (AMI) and Assistant Public Health Inspector
(APHI), respectively, in their respect, w.e.f. the dates, as
mentioned against their names vide Annexure-A to the
'Order' and 'terms of reference' of the instant dispute,
between the parties, as abovesaid, as also the employment/
duration of employment of the workmen with the
management on the relevant posts of Assistant Malaria
Inspector (AMI) and Assistant Public Health Inspector
(APHI), w.e.f. the dates as mentioned in respect of the
respective workmen vide Annexure-A to the 'Order' and
'terms of reference' of the instant dispute, between the
parties, as abovesaid, i.e. w.e.f. September/ October, 2010,
having been admitted by the management in its cross-
examination of the workmen/ WW1 to WW39 in workmen
evidence (except for WW12 Sh. Nitish Parkash.Pandey, who
has not appeared in workmen evidence at all and WW38 Sh.
Dharmveer Meena, who has not appeared in his
crossexamination on behalf of the management in workmen
evidence) that. it is wrong to suggest that the management
has not indulged in unfair labour practices by· continuing
the employment of the workmen with the management on the
said post on contractual basis w.ef. the initial date of
appointment of the workmen on the same with a view to
denying them the benefits of regular employees performing
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the same work with the management, there being no rebuttal
to the said averments of the workmen regarding their
employment with the management on the posts and w .e.f. the
date of their initial joining with the management on the same
vide AnnexureA to the 'Order' and 'terms of reference' of the
instant dispute, between the parties, as abovesaid, in their
cross-examination on behalf of the management in workmen
evidence, as abovesaid, which averments of the workmen in
respect of their appointment management on the post of
Assistant Malaria Inspector (AMI) and Assistant Public
Health Inspector (APHI), respectively, w.e.f the dates of
their initial joining with the management on the same and
the present place of their posting with the management, as
mentioned against their names, vide Annexure-A to the
'Order' and 'terms of reference' of the instant dispute,
between the parties, as abovesaid, along with vide contents
of para nos.1 and 2 of their statement of claim on merits in
the same to the effect:
1. The present statement of claim is being filed on behalf of
39 workmen whose service particulars are as under:-
X X X
2. That all the workmen aforesaid were taken into job in the
year 2010 w.e.f. the dates as mentioned above. In fact, the
vacancies of AMI and APHI were advertised in various daily
newspapers. Consequently, the workmen aforesaid applied
for the same and subsequently, their interviews were taken.
Thereafter, the police verification and medical examination
was also got done by the management aforesaid regarding
the workmen as detailed above."
it is seen from the record have been admitted by the
management with no rebuttal to the same, when it states in
reply on merits in its written statement to the same as
follows:
"1. That Para no.1 of the Statement of Claim regarding
particulars of 39 workmen under reply is a matter of record
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and the workmen be put to strict proof of their contention in
this regard.
2. That Para no.2 of the Statement of Claim under reply is
alsobeing a matter of record and the workmen be also be put
to strict proof of their contention in this regard."
26. That it is further seen from the record that there being no
defence on the part of the management to the said
avernments/ assertions of the workmen apart from reliance
upon Ex.MWl/2 being copy of "Contract Agreement" dated
27.09.2010 initially entered by the management with the
workman/ WWI Sh. Vishant Kumar Kholiya in respect of his
employment with the management on the post of Assistant
Malaria Inspector (AMI) on contract basis on a consolidated
sum of Rs.10,300/- per month for a period of 6 months w.e.f.
27.09.2010 to 26.03.2011, on the terms and conditions of
service as mentioned therein, however, it being not disputed
that the workmen are continuously in the employment of the
management as Assistant Malaria Inspector (AMI) and
Assistant Public Health Inspector (APHI) respectively, w.e.f.
the dates viz. September/ October, 2010, as mentioned
against their names vide the Annexure-A to the 'Order' and
'terms of reference' of the instant dispute, between the
parties, read with contents of para nos.1 and 2 of the
statement of claim of the workmen in the same, as abovesaid,
(which are also not disputed/ any material in rebuttal of the
same given in the corresponding reply on behalf of the
management to the same in its written statement filed to the
statement of claim of the workmen in the instant reference,
on record, as already observed herein above), with an
alleged artificial break of one day after every six months of
their employment, which I find from the record has not been
proved, on record.
27. It is further seen from the record that vide Ex.MW 1/3
the are admitted to certain allowances vide Order dated
05.04.2017 of the Central Administrative Tribunal, Principal
Bench, New Delhi passed in O.A. No. 3784/2015, between
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the parties, in this regard, which has been complied with by
the management in respect of the workmen vide its Office
Order dated 20.03.2019, Ex.MW1/1, on record, which
documents also go towards proving the claim of the
workmen of they being continuously in employment of the
management on the post of Assistant Malaria Inspector
(AMI) and Assistant Public Health Inspector (APHI),
respectively, w.e.f. the dates in September/ October, 2010, as
mentioned against their names vide Annexure A to the
'Order' and 'terms of reference' of the instant dispute,
between the parties, as abovesaid, till to date.
28. It is further seen from the record that it has been
admitted/ deposed by the MW1 Sh. Rajesh Kumar,
Administrative Officer, Public Health Department of the
management in his cross-examination on behalf of the
workmen in management evidence that he cannot state
whether the particulars of the workmen in the instant dispute
given in annexure A to the order of reference dated 14.05.15
as well as in the para No. 1 of the statement of claim filed on
behalf of the workmen in the same are correct or not; that he
had never examined the service record of the workmen; that
he had filed the affidavit on the basis of information in the
office as told to him by Dealing Assistant Court, who is a
retired Malaria Inspector with the management; that the
address of the management as mentioned on Exhibits WW1/1
and WWl/2 is correct; that documents Exhibits WWl/7,
WWJ/8, WW211, WW2/2, WW213, WW3/l, WW411, WW4/2,
WW4/3, WW5/l, WW611, WW711, WW712 WW7!3, WWB/1,
WWB/2, WWB/3, WW9/l, WW912, WlV9/3, WW9!4,
WWJ0/1, WWJ0/2, WWJ0/3, WWJ0/4, WWJJ/1, WW11/2,
WW11/3, WW13/l, WW13/2, WWJJ/3, WW13/4, WWJ411,
WW1412, WW1511, WW15/2, WW15/3, WW16/1, WWJ6!2,
WW16/3, WW1711, WW1712, WW17/3, WW38/l, WW38/2,
WW38!3, WW37/l, WW37/2, WW33/l, WW33/2, WW33!3,
WW2111, WW21!2, WW21!3, WW35!1, WW35/2, WW23/J,
WW23/2, WW23!3, WW2314 WW28/1, WW2812, WW2813,
WW28/4 WW19/l, WW19/2, WW19/3, WW19/4, WW20/J,
WW2012, WW24/1, WW24/2, WW34/1, WW34/2, WW25/1,
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WW25/2, WW26/1, WW26/2, WW29/1, WW29/2, .WW29/3,
WW27/1,WW2712, WW31/1, WW31/2, WW32/1, WW32/2,
WW18/1, WWIB/2, WW22/1 and WW30/1 have been issued
by the management; that it is correct that the concerned
workmen are working on the post of Assistant Malaria
Inspector and Assistant Public Health Inspector against the
vacant posts of the said appointments carrying the regular
pay scale; that the management is not having any complaint
against the concerned workmen in respect of their work and
conduct; that he cannot say whether in the year 2010 an
advertisement had been issued by the management in
National Daily in respect of the posts of Assistant Public
Health Inspector and Assistant Malaria Inspector; that he
also cannot say whether the concerned workmen along with
other candidates had applied for the said posts with the
management pursuant to such advertisement; that he also
cannot say whether the concerned workmen had been duly
selected by conduction of interviews by the constituted
selection board of the management to the post of Assistant
Public Health Inspector and Assistant Malaria Inspector at
that time or not; that it is correct that the workmen are
fulfilling requirements as per the recruitment rules of the
management for the said posts; that it is correct that the
work of the posts of Assistant Public Health Inspector and
Assistant Malaria Inspector is of a permanent nature; that it
is correct that the concerned workmen are not getting the
emoluments and benefits as their regular counter parts
doing similar nature of duties and working hours; that the
workmen are working regularly since their appointment
except one day break being given after every six months;
that he was unable to show any rule and regulation of the
management justifying such one day break in service of the
concerned workmen after every six months; that it is wrong
to suggest that the one day break was given to circumvent
the law and the facts of this case; that he cannot say what is
the sole purpose of giving one day break; that the
management is not having any policy to regularize such like
workmen as the concerned workmen; that it is correct that
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the posts of Assistant Public Health Inspector and Assistant
Malaria Inspector are lying vacant with the management;
that it is correct that the requirement of executing a contract
as mentioned by him in para No. 7, of his affidavit, on the
part of the concerned workmen was essential for their
continuing in employment with the management on the said
posts and in case the same was not submitted on the part of
each of them, the service of such workman would not have
been continued; that it is correct that the corporation is
having the right to appoint and terminate anybody in
service; that it is wrong to suggest that the management has
indulged in unfair labour practices by appointing the
workmen as contractual workers with the object of depriving
status and salary of a regular employee doing similar nature
of work and duty of hour, to them and that it is wrong to
suggest that the management has adversely discriminated
the concerned workmen in the matter of their service
conditions.
29. That it is thus, evident that the management is making
the workmen work on the post of Assistant Malaria Inspector
(AMI) and Assistant Public Health Inspector (APHI)
continuously w.e.f. the date of their first appointment to the
same as mentioned in their respect vide Annexure A to the
'Order' and 'terms of reference' of the instant industrial
dispute, between the parties, as abovesaid, read with
contents of para nos.1 and 2 of the statement of claim filed
by the workmen in the same (which are not disputed by the
management vide its corresponding reply on merits to the
same in its written statement, filed to the statement of claim
of the workmen, in the instant reference, on record, as
already observed hereinabove) till to date i.e. for a
considerable period of more than 9 years in respect of them
w.e.f. the date of their first appointment with the
management to the posts in question, as abovesaid, on
record, with further admission/ deposition on the part of the
management witness MW1 Sh. Rajesh Kumar,
Administrative Officer, Public Health Department of the
management in his cross-examination on behalf of the
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workmen in management evidence that it is correct that the
concerned workmen are working on the post of Assistant
Malaria Inspector and Assistant Public Health Inspector
against the vacant posts of the said appointments carrying
the regular pay scale; that the management is not having
any complaint against the concerned workmen in respect of
their work and conduct; that it is correct that the workmen
are fulfilling the requirements as per the recruitment rules of
the management for the posts; that it is correct that the work
of the posts of Assistant Public Health Inspector and
Assistant Malaria Inspector is of a permanent nature; that it
is correct that the concerned workmen are not getting the
emoluments and benefits as their regular counter parts
doing similar nature of duties and working hours; that the
workmen are working regularly since their appointment
except one day break being given after every six months;
that he was unable to show any rule and regulation of the
management justifying such one day break in service of the
concerned workmen after every six months; that it is wrong
to suggest that the one day break was given to circumvent
the law and the facts of this case; that he cannot say what is
the sole purpose of giving one day break; that the
management is not having - any policy to regularize such
like workmen as the concerned workmen; that it is correct
that the posts of Assistant Public Health Inspector and
Assistant Malaria Inspector are lying vacant with the
management; that it is correct that the requirement of
executing a contract as mentioned by him in para No. 7, of
his affidavit, on the part of the concerned workmen was
essential for their continuing in employment with the
management on the said posts and in case the same was not
submitted on the part of each of them, the service of such
workman would not have been continued; that it is correct
that the corporation is having the right to appoint and
terminate anybody in service; that it is wrong to suggest that
the management has indulged in unfair labour practices by
appointing the workmen as contractual workers with the
object of depriving status and salary of a regular employee
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doing similar nature of work and duty of hour, to themand
that it is wrong to suggest that the management has
adversely discriminated the concerned workmen in the
matter of their service conditions. which action of the
management it is found amounts to unfair labour practice
qua the workmen as outlined/ stipulated vide clause 10 of the
Fifth Schedule of the Industrial Disputes Act, 194 7, (as
amended up to date) viz. uro employ workmen as "badlis"
casuals or temporaries and to continue them as such for
years, with the object of depriving them of the status and
privileges of permanent workmen" and as also argued by Ld.
AR for the workmen in this regard.
XXX
35. In view of the case law, as abovesaid, as also in view of
the facts and circumstances of the case, as abovesaid, I find
from the record that the workmen/ WWl to WW11, WW13 to
WW37 and WW39, as abovesaid, (WW12 Sh. Nitish Parkash
Pandey having not appeared both in his examination-in-
chief and cross-examination on behalf of the management in
workmen evidence and WW38, Sh. Dharamveer Meena
having not appeared in his cross-examination on behalf of
the management in workmen evidence), have been able to
make out a case for regularisation of their services with the
management on the post of Assistant Malaria Inspector
(AMI) and Assistant Public Health Inspector (APHI),
respectively, asmentioned in their respect, vide Annexure-A
to the 'Order' and 'terms reference' of the instant dispute,
between the parties, as abovesaid, read contents of para no.
1 of the statement of claim, filed by the workmen in the
instant reference, as abovesaid, on record, w .e.f. the dates
of their first appointment with the management to the
concerned posts, as also mentioned against their names vide
the same> with retrospective effect from the initial date of
their joining into the employment alongwith difference of
salary on the principle of "Equal Pay for Equal Work" from
the initial date of their joining onwards as per the terms of
reference, the instant issue, in view of the admission!
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deposition on the part of the MWl Sh. Rajesh Kumar,
Administrative Officer, Public Health Department of the
management/ South Delhi Municipal Corporation, in his
cross-examination on behalf of the workmen in management
evidence to the effect that:- "It is correct that the concerned
workmen are working on the post of Assistant Malaria
Inspector and Assistant Public Health Inspector against the
vacant posts of the said appointments carrying the regular
pay scale; that the management is not having any complaint
against the concerned workmen in respect of their work and
conduct; that he cannot say whether in the year 2010 an
advertisement had been issued by the management in
National Daily in respect of the posts of Assistant Public
Health Inspector and Assistant Malaria Inspector; that he
also cannot say whether the concerned workmen along with
other candidates had applied for the said posts with the
management pursuant to such advertisement; that he also
cannot say whether the concerned workmen had been duly
selected by conduction of interviews by the constituted
selection board of the management to the post of Assistant
Public Health Inspector and Assistant Malaria Inspector at
that time or not; that it is correct that the workmen are
fulfilling the requirements as per the recruitment rules of the
management for the said posts; that it is correct that the
work of the posts of Assistant Public Health Inspector and
Assistant Malaria Inspector is of a permanent nature; that it
is correct that the concerned workmen are not getting the
emoluments and benefits as their regular counter parts
doing similar nature of duties and working hours; that the
workmen are working regularly since their appointment
except one day break being given after every six months;
that he was unable to show any rule and regulation of the
management justifying such one day break in service of the
concerned workmen after every six months; that it is wrong
to suggest that the one day break was given to circumvent
the law and the facts of this case; that he cannot say what is
the sole purpose of giving one day break; that the
management is not having any policy to regularize such like
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workmen as the concerned workmen; that it is correct that
the posts of Assistant Public Health Inspector and Assistant
Malaria Inspector are lying vacant with the management;
that it is correct that the requirement of executing a contract
as mentioned by him in para No. 7, of his affidavit, on the
part of the concerned workmen was essential for their
continuing in employment with the management on the said
posts and in case the same was not submitted on the part of
each of them, the service of such workman would not have
been continued; that it is correct that the corporation is
having the right to appoint and terminate anybody in
service; that it is wrong to suggest that the management has
indulged in unfair labour practices by appointing
theworkmen as contractual workers with the object of
depriving status ana · salary of a regular emp-loyee doing
similar nature of work and duty of hour, to them and that it
is wrong to suggest that the management has adversely
discriminated the concerned workmen in the matter of their
service conditions", as abovesaid, on record. The instant
issue is accordingly, decided in favour of the~onunen and
against the management.
36. Findings on issue no.4: Relief.
In view of my findings on issue no.l, 2 and 3, as abovesaid,
the workmen/ WWl to WWll, WW13 to WW37 and WW39, as
abovesaid, are accordingly, held to be entitled for
regularisation of their services on the post of Assistant
Malaria Inspector I Assistant Public Health Inspector, as
applicable in their respect, vide Annexure-A to the 'Order'
and 'terms of reference' of the instant dispute, between the
parties, as abovesaid, read with contents of para no. 1 of the
statement of claim, filed by the workmen in the instant
reference, as abovesaid, on record, with retrospective effect
from the initial date of their joining into the employment
with the management, as also applicable in their respect,
vide Annexure-A to the 'Order' and 'terms of reference' of the
instant dispute, between the parties, as abovesaid, read with
contents of para no. 1 of the statement of claim, filed by the
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workmen in the instant reference, as abovesaid, on record,
alongwith difference of salary on the principle of "Equal Pay
for Equal Work" from the initial date of their joining
onwards. The workmen nomenclated as WW12 Sh. Nitish
Parkash Pandey and WW38 Sh. Dharamveer Meena, having
not appeared in workmen evidence and in cross-examination
on behalf of the management in workmen evidence,
respectively, are held to be not entitled to any relief in the
instant reference.
37. Reference is answered accordingly and award is passed
in these terms.
”
47. Upon perusal of the aforementioned Award, it can be summarily
stated that the learned Tribunal upon completion of pleadings had framed
four issues, firstly, whether there exists relationship of employer and
employee between the parties; secondly, whether the claim of the
workmen has been properly espoused by the Union? And thirdly, whether
the workmen are entitled for their claim as per the terms of reference, and
fourthly, to what relief are the parties entitled.
48. Qua issue no. 1, the learned Tribunal observed that the relationship
of employer and employee between the parties has not been disputed as it
has been admitted by the petitioner management that the workmen were
employed as Assistant Malaria Inspector (AMI) and Assistant Public
Health Inspector (APHI) with the management on a contract basis. The
same has also been proved on record by the parties through their
respective evidence. Therefore, the instant issue is accordingly, decided
in favour of the workmen and against the management.
49. Qua issue no. 2 the petitioner has raised a contention that the cause
of the workmen has not been properly espoused by the union. In
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response, the respondent workman argued that as the union has presented
the resolution passed by it in order to raise an industrial dispute in the
favour of the workmen, the same will be enough to give effect to the
espousal.
50. The learned Tribunal took into consideration the oral evidence on
record coupled with the documents presented having the list of the
members as part of the annexure, and the resolution dated 24 the
February, 2014 passed by the union and observed that these evidence
clearly serve to prove that the cause of the claimants was properly
espoused by the union and a resolution to that effect was passed. Further,
p
lacing reliance upon a decision by the Hon‟ble Supreme Court in the
13
matter of J.H. Jadhav v. M/s Forbes Gokak Ltd. , the learned Tribunal
held that no particular form has been prescribed to effect an espousal, and
that the same depends upon and varies with the facts of each case. Hence,
the learned Tribunal held that in the instant case it is clear from the
evidence on record that the proceeding is maintainable for the proper
espousal of the cause of the claimants.
51. Qua issue no.3, the learned Tribunal, in the impugned Award, has
observed that the respondent workmen were selected through proper
selection procedure including interview, police verification and medical
examination for performing a permanent and perennial nature of job on
the posts of AMI and APHI. They had been doing the work of a regular,
permanent and perennial nature on the said posts for as long as 13 years
despite which they have remained employed as contractual employees
13 th
Civil Appeal No. 1089 of 2005 dated 11 February, 2005
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when their regular counterparts have been performing the same job and
getting salary in proper pay scale.
52. It was held by the learned Tribunal that the petitioner, with the
object of depriving the respondent workmen the status and privileges of a
regular and permanent employee, has wrongly treated them as contractual
employees. In view of the aforesaid observations, the learned Tribunal
held that the aforesaid conduct of the petitioner entity amounts to unfair
trade practices by employing the workmen concerned on contractual basis
and continuing their services on contractual basis for 13 long years.
53. The learned Tribunal placed further reliance on the judgments of
14
Chief Conservator of Forest v. Jagannath Maruti Kondhari & Ors
15
and Project Dir. Dep. Of Rural Development v. Its Workmen to
observe that the non-regularisation of the services of the workmen
amounted to unfair labour practice and that the workmen concerned are
entitled for regularization of their services on their respective posts of
AMI and APHI from their respective initial dates of joining. It was
further held that the judgment of Uma Devi (Supra) is not applicable to
the present case, since the aforesaid judgment is not applicable on the
industrial workers.
54. Before adverting to the merits of the instant batch of petitions, this
Court will state the settled position of law pertaining to regularisation of
industrial workers.
55. The prolonged temporary employment should not be used as a
reason to deny workers the benefits and security that come with
14
(1996) 2 SCC 293
15
2019 SCC OnLine Del 7796
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regularization. Furthermore, a continuous period of service creates a
legitimate expectation of permanency. The Court, in a
Hon‟ble Supreme
catena of judgments, has held that the employees who have been
continuously employed in an organization for a significant period, even if
initially hired on a temporary or contractual basis, should not be treated
as temporary forever. This principle aims to prevent the exploitation of
workers by keeping them in a perpetual state of temporary employment.
56. Moreover, the industrial workers who perform duties identical to
those of regular employees, as per the principle of equal pay for equal
16
work, as laid down in the judgment of State of Punjab vs. Jagjit Singh ,
mandates that employees performing similar duties should receive equal
treatment. The Supreme Court has emphasized on the aspect that
Hon‟ble
any differentiation in pay and benefits for employees doing the same
work violates Article 14 and Article 39(d) of the Constitution of India. It
that the denial of equal pay
was further observed by the Hon‟ble Court
for equal work is not just a matter of statutory interpretation but a
constitutional mandate ensuring fairness and justice in labour practices.
57. The Supreme Court in the judgment of Randhir Singh vs.
Hon‟ble
17
Union of India held that temporary or contractual status of a workman
should not be a ground for depriving him of equal pay even if the duties
performed are similar to that of a regular employee.
58. This Court has referred to the judgment Chief Conservator of
Forest (Supra) which was also relied upon by the learned Tribunal,
wherein it was held that the contractual workers who are working for
16
(2017) 1 SCC 148
17
(1982) 1 SCC 618
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longer duration are entitled for regularisation. The relevant extracts of the
judgment is reproduced herein below:
25. To bring home his submission regarding the unjust
“
nature of the relief relating to regularisation, Shri Bhandare
sought to rely on the decision of this Court in Delhi
Development Horticulture Employees' Union v. Delhi Admn.
[(1992) 4 SCC 99 : 1992 SCC (L&S) 805 : (1992) 21 ATC
386 : JT (1992) 1 SC 394] We do not think that the ratio of
this decision is applicable to the facts of the present case
inasmuch as the employment of persons on daily-wage basis
under Jawahar Rozgar Yojna by the Development
Department of Delhi Administration, whose claim for
regularisation was dealt with in the aforesaid case was
entirely different from that of the scheme in which the
respondents-workmen were employed. Jawahar Rozgar
Yojna was evolved to provide income for those who are
below the poverty line and particularly during the periods
when they are without any source of livelihood and,
therefore, without any income whatsoever. It is because of
this that the Bench observed that the object of the Scheme
was not to provide right to work as such even to the rural
poor, much less to the unemployed in general. As against
this, the workmen who were employed under the schemes at
hand had been so done to advance objects having permanent
basis as adverted to by us.
26. Therefore, what was stated in the aforesaid case cannot
be called in aid at all by the appellants. According to us, the
case is more akin to that of State of Haryana v. Piara
Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21
ATC 403] in which this Court favoured the State Scheme for
regularisation of casual labourers who continued for a fairly
long spell say two or three years, (paragraph 51). As in
—
the cases at hand the workmen concerned had, by the time
they approached the Industrial Courts worked for more or
less 5 years continuously, no case for interference with this
part of the relief has been made out.
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27. We may also meet the contention that some of the
workmen had been employed under the Maharashtra
Employment Guarantee Act, 1977. As to this, we would first
observe that no factual basis for this submission is on
record. Indeed, in some of the cases it has been pointed out
that the employer had not even brought on record any order
of appointment under this Act. This apart, a perusal of this
Act shows that it has not excepted the application of the
Industrial Disputes Act, 1947. This is apparent from the
perusal of Section 13 of this Act. It may be further pointed
out that this Act having been brought into force from 1978,
could not have applied to the appointments at hand most of
whom are of the year 1977.
28. Insofar as the financial strain on the State Exchequer is
concerned, which submission is sought to be buttressed by
Shri Dholakia by stating that in the Forest Department itself
the casual employees are about 1.4 lakhs and if all of them
were to be regularised and paid at the rate applicable to
permanent workmen, the financial involvement would be in
the neighbourhood of Rs 300 crores a very high figure
—
indeed. We have not felt inclined to bear in mind this
contention of Shri Dholakia as the same has been brought
out almost from the hat. The argument relating to financial
burden is one of despair or in terrorem. We have neither
been impressed by the first nor frightened by the second
inasmuch as we do not intend that the view to be taken by us
in these appeals should apply, proprio vigore, to all casual
labourers of the Forest Department or any other Department
of the Government.
29. We wish to say further that if Shri Bhandare's submission
is taken to its logical end, the justification for paying even
minimum wages could wither away, leaving any employer,
not to speak of model employer like the State, to exploit
unemployed persons. To be fair to Shri Bhandare it may,
however, be stated that the learned counsel did not extend
his submission this far, but we find it difficult to limit the
submission of Shri Bhandare to payment of, say fair wages,
as distinguished from minimum wages. We have said so,
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because if a pay scale has been provided for permanent
workmen that has been done by the State Government
keeping in view its legal obligations and must be one which
had been recommended by the State Pay Commission and
accepted by the Government. We cannot deny this relief of
permanency to the respondents-workmen only because in
that case they would be required to be paid wages meant for
permanent workers. This right flows automatically from the
relief of regularisation to which no objection can reasonably
be taken, as already pointed out. We would, however,
observe that the relief made available to the respondents is
not one which would be available ipso facto to all the casual
employees either of the Forest Department or any other
Department of the State. Claim of casual employees for
permanency or for higher pay shall have to be decided on
the merits of their own cases.”
59. Further, the Supreme Court, recently in the judgment of
Hon‟ble
18
Vinod Kumar & Ors. Etc. v Union of India & Ors , held that when the
workman has been appointed as per the proper procedure of recruitment,
therefore, the recruitment is done lawfully, and in such an event the
services of the workman can be regularised. The relevant extracts of the
judgment is reproduced herein below:
6. The application of the judgment in Uma Devi (supra) by
“
the High Court does not fit squarely with the facts at hand,
given the specific circumstances under which the appellants
were employed and have continued their service. The
reliance on procedural formalities at the outset cannot be
used to perpetually deny substantive rights that have
accrued over a considerable period through continuous
service. Their promotion was based on a specific notification
for vacancies and a subsequent circular, followed by a
selection process involving written tests and interviews,
18 th
SLP(C) Nos.22241-42 of 2016 dated 30 January, 2024
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which distinguishes their case from the appointments
through back door entry as discussed in the case of Uma
Devi (supra).
7. The judgement in the case Uma Devi (supra) also
distinguished between “irregular” and “illegal”
appointments underscoring the importance of considering
certain appointments even if were not made strictly in
accordance with the prescribed Rules and Procedure,
cannot be said to have been made illegally if they had
followed the procedures of regular appointments such as
conduct of written examinations or interviews as in the
present case. Paragraph 53 of the Uma Devi (supra) case is
reproduced hereunder:
“53. One aspect needs to be clarified. There may
be cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
[(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N.
Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR
799] and B.N. Nagarajan [(1979) 4 SCC 507 :
1980 SCC (L&S) 4 : (1979) 3 SCR 937] and
referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might have
been made and the employees have continued to
work for ten years or more but without the
intervention of orders of the courts or of tribunals.
The question of SLP(C) regularisation of the
services of such employees may have to be
considered on merits in the light of the principles
settled by this Court in the cases above referred to
and in the light of this judgment. In that context,
the Union of India, the State Governments and
their instrumentalities should take steps to
regularise as a one-time measure, the services of
such irregularly appointed, who have worked for
ten years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals
and should further ensure that regular recruitments
are undertaken to fill those vacant sanctioned posts
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that require to be filled up, in cases where
temporary employees or daily wagers are being
now employed. The process must be set in motion
within six months from this date. We also clarify
that regularisation, if any already made, but not
sub judice, need not be reopened based on this
judgment, but there should be no further bypassing
of the constitutional requirement and regularising
or making permanent, those not duly appointed as
per the constitutional scheme.”
8. In light of the reasons recorded above, this Court finds
merit in the appellants' arguments and holds that their
service conditions, as evolved over time, warrant a
reclassification from temporary to regular status. The failure
to recognize the substantive nature of their roles and their
continuous service akin to permanent employees runs
counter to the principles of equity, fairness, and the intent
behind employment regulations.”
60. Since this Court has discussed the settled legal proposition in the
preceding paragraphs, this Court will now advert to adjudication of the
instant petition on merits.
61. It is admitted position that the respondents were selected through a
proper procedure, had continuously worked on their respective job
positions for a long period of time, done similar work as that of the
regularised employee and paid wages lesser than the regularised
employee.
62. Upon perusal of the aforementioned judicial dicta and taking into
account the factual matrix of the instant case, this Court is of the view
that the learned Tribunal correctly held that the respondent workmen have
been working for a long period against the sanctioned posts for which the
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recruitment was conducted by following the due procedure, therefore, the
respondent workmen are entitled for regularisation of their services.
63. It is observed by this Court that while there is no fundamental right
to regularization, employees who have been working for a number of
years and whose services are needed must be considered sympathetically
for grant of regularization. With regard to the facts of the instant case, the
respondent workmen are performing functions for the petitioner which is
similar to the functions performed by the regular employees working with
the petitioner. In light of the said fact, the continuous nature of the
employment of the respondent workmen suggests a de facto
regularization.
64. This Court is of the view that the services of the respondent
workmen must be regularised in order to prevent their exploitation and
unfair labour practices. The premise of the same lies in the fact that
regularizing long-term temporary workers not only benefits the
employees but also contributes to the overall efficiency and effectiveness
of the organization.
65. In view of the foregoing paragraphs, it is stated that the learned
Tribunal rightly held that the respondent workman in the instant batch of
petitions meet the conditions to be entitled to be regularized as they have
been employed for a long period, performing work similar to the regular
employees of the petitioner, and their recruitment was not through any
irregular or illegal means which is against the constitutional scheme.
66. The petitioner has contended before this Court that by granting
regularization to the respondent workmen, the petitioner will suffer from
financial hardships. With regard to the same, this Court is of the view that
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while economic considerations are important, they should not override
the fundamental principles of fairness and justice in labour practices.
Therefore, the contention of the petitioner with respect to the financial
hardship is legally untenable and thus, rejected.
67. In view of the aforesaid discussions on facts and law, it is held that
the respondent workmen in the batch of petition are entitled to be
regularised at their respective positions at which they were employed
from the date as specified by the learned Tribunal.
68. Accordingly, this Court is of the view that the impugned award
does not suffer from any illegality or error apparent on the face of it
which merits interference of this Court.
CONCLUSION
69. The instant petition is an appeal in the garb of a writ petition. The
petitioner is seeking a review of the orders despite the fact that there are
no such special circumstances that require the interference of this
Court.The petitioner is not aggrieved by any such violation of the rights
of the petitioner, which merits intervention of this Court in the orders
passed by the respondent.
70. The writ of certiorari cannot be issued in the present matter since
for the issuance of such a writ, there should be an error apparent on the
face of it or goes to the root of the matter. However, no such
circumstances are present in the instant petition.
71. The writ jurisdiction is supervisory and the court exercising it is
not to act as an appellate court. It is well settled that the writ court would
not re-appreciate the evidence and substitute its own conclusion of fact
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for that recorded by the adjudicating body, be it a court or a tribunal. A
finding of fact, howsoever erroneous, recorded by a court or a tribunal
cannot be challenged in proceedings for certiorari on the ground that the
relevant and material evidence adduced before the Court or the Tribunal
was insufficient or inadequate to sustain the impugned finding.
72. This Court is of the view that in light of the aforesaid discussions,
the respondent workmen are entitled to regularisation since they were
selected through a proper procedure, working for long period of time and
are doing work similar to the regular employees.
73. In view of the aforesaid discussions, the impugned award dated
th
13 November, 2019 passed by the learned Presiding Officer, Industrial
Tribunal, Rouse Avenue Courts Complex, New Delhi in case bearing I.D
No. 58/2016 is upheld.
74. Accordingly, the impugned awards in the batch of petition are
upheld and the instant batch of petition is dismissed along with the
pending applications, if any.
75. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
MAY 31, 2024
Sv/db/da/ryp
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