Workmen Of Municipal Corporation ... vs Management Of Municipal ...
1986 Latest Caselaw 249 Del

JUDGMENT

1. This case is a glaring example of laws delay. Certain disputes arose between various workmen of Municipal Corporation of Delhi and the Management of the said Corporation in the year 1967/68. In this petition I am only concerned with the dispute regarding the petitioner namely Zia-ud-din. The conciliation proceedings having failed the disputes was referred to the Addl. Industrial Tribunal, Delhi by the Lieutenant Governor vide order dated 20th September, 1968. The terms of reference were :-

"Whether the non-employment since 1st October, 1967 of Zia-ud-din pipe fitter. Slum Department was wrongful and/or unjustified and if so to what relief is he entitled ?"

2. The petitioner workmen filed his statement of claim before the Tribunal. It was stated :-

"The workman Sh. Zia-ud-din was taken into employment by the Municipal Corporation of Delhi in its Slum & Housing Department as a Pipe Fitter on a regular vacancy in the pay scale of Rs. 110-3-131-4-139 with usual allowances admissible under the rules. But to his utter surprise on 31st August, 1962 he was placed on the list of Muster Roll daily rated workers. The Municipal Corporation did not give any notice under Section 9(A) of the Industrial Disputes Act, 1947 for bringing this fact in his service conditions. The workman aforesaid, on one side, represented his case to the Higher authorities and on the other side he continued performing his duties wherever he was put to work. The Management of the Municipal Corporation of Delhi forced unemployment on the aforesaid workman w.e.f. 1st October, 1967 without assigning any reason thereof in clear violation of the mandatory provisions of Law and the rules made there under. The workman aforesaid has been paid wages for the period form 1st September, 1962 to 1st October, 1967 at the rate of Rs. 6/- per day and he was not paid for weekly off days although he was entitled to full facilities, privileges, allowances and the pay scale he was originally granted. The action of the Municipal Corporation in throwing him out of the job is bad, improper, unjust and mala fide amounting to wrongful termination of service and unfair labour practice."

3. The Management of the Municipal Corporation instead of filing the written statement asked for certain further particulars, particularly regarding the date of his first appointment etc. The said particulars were furnished by the petitioner. Thereafter the Management filed the written statement and it was pleaded :-

"Not admitted as stated. Sh Zia-ud-din, Pipe Fitter was appointed for some time temporarily in Slum Department but subsequently he was engaged on daily wages basis on Muster Roll as he was found junior to some other senior Muster Roll workers.

In view of the above circumstances, the action of the Municipal Corporation of Delhi is bona fide and according to the rules and regulations."

4. The petitioner led evidence in support of his case and he examined himself as WW5. He deposed that he joined the Municipal Corporation in the year 1961 and was removed in 1967 when he was getting Rs. 6/- per day. He further stated that in the year 1962 he was working as a permanent employee for five months but thereafter was put on the Muster Roll. He stated that in the year 1962 he worked for 358 days, in 1963 for 341 days, in 1964 for 343 days, in 1965 for 359 days, in 1966 for 304 days in 1967 for 292 days. He further stated that the J.J. Scheme in which he was working was transferred to D.D.A. in the year 1968. Since his removal from service he has been doing some manual labour and is not employed anywhere. He further stated that he was also entitled to weekly off after working for six days which was not allowed to him. No evidence in rebuttal, was led by the Management. It appears that during the course of arguments, before the Tribunal, it was stated that the department in which the petitioner was working stood transferred to DDA in 1968 and as such no relief could be granted to the petitioner. The Tribunal accepted the statement of the petitioner regarding the number of days for which he worked in each of the years till 1967. The Tribunal also noticed that after the services of the petitioner were terminated, the Management had engaged another person in his place. It was further found that the Management had failed to examine any evidence in rebuttal and the management had not prepared any seniority list which it was under obligation to do in view of its own resolution dated 5th January, 1967. However, surprisingly the claim of the petitioner was negatived only with the following observations :-

"Management's contention is that since the J.J. Scheme has been transferred to D.D.A. the Municipal Corporation has nothing to do with the employees of that scheme. The workman Zia-ud-din has himself admitted in cross-examination that all the employees of J.J. Scheme have been transferred to the DDA Since the DDA is an independent body, the Municipal Corporation can have no say in the matter of employment of that body. I find myself in agreement with the above contention and hold that the claim of the workman against the Municipal Corporation of Delhi is misconceived."

5. Aforesaid finding was recorded inspite of the fact that admittedly the department was transferred to D.D.A. much after 1st October, 1967, the date from which the petitioner was not given the work. Secondly the petitioner had filed an affidavit before the Industrial Tribunal to the effect that the department had been retransferred to the Municipal Corporation and that affidavit was filed in 1971. There was no evidence to the contrary and in any case even according to the Municipal Corporation the employees of that department were transferred to D.D.A. and none of them was relieved merely because the department was being transferred.

6. In fact in this petition, I am concerned with the date from which the petitioner was not assigned any further work which means that he was relieved or his services were terminated and on that date the department was admittedly with the Municipal Corporation. The contention of the learned counsel for the petitioner was that the petitioner could not be retrenched as the conditions precedent for retrenchment were not fulfillled and thus the order was in contravention of Section 25(F) of the Industrial Dispute Act, here-in-after called "the Act". By now it is well-settled that Section 25(F) of the Act is plainly intended to give relief to retrenched workman. The qualification for relief under Section 25(F) is that the person should be the workman employed in an industry and has been in continuous service for not less that one year under his employer. What is continuous service has been defined and explained in Section 25(B) of the Act. The workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman during the period of 12 months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days. In the present case, the petitioner is admittedly a workman and the Municipal Corporation is admittedly an industry. There is no dispute that the petitioner did put in much more than 240 days in each year continuously for six years. In fact the allegations of the petitioner before the Industrial Tribunal or before this Court have not been denied. This petition has remained pending for over 13 years and in spite of that no counter-affidavit has been filed by the Municipal Corporation, Delhi. The only contention of the learned counsel for the respondent before me was that the petitioner was a daily rate workman in a department which stood transferred to D.D.A. and as such he could not be assigned any work by the Management. This contention has no basis. It has reportedly been held by their lordships of the Supreme Court that a daily rated workman is an good a workman as any other provided he has put in the requisite number of days during the relevant period. In Rober D'Souza V. Executive Engineer Southern Railway, 1982 - I - LLJ - 330 it was held at page 343.

"Therefore, assuming that he was a daily rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25F of the Act and his service is terminated for any reason whatsoever and his case does not fall in any of the excepted categories notwithstanding the fact that Rule 2505 (Railway Establishment Manual) would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre-conditions to valid retrenchment, the order of termination would be illegal and invalid."

7. In view of the fact stated above and the law laid down by their lordships of the Supreme Court, it has to be held that the non-employment of the petitioner from 1st October, 1967 amount to his termination and the said termination is invalid for non-compliance with the pre-conditions to valid retrenchment. In fact the Management has not even alleged that there was any compliance with the preconditions to valid retrenchment.

8. The next question which has to be considered is regarding the relief to be given to the petitioner. Obviously the petitioner is entitled to reinstatement but the difficulty is regarding the back wages. The management has led no evidence either before the Tribunal or before this Court to the effect that the petitioner was in any way gainfully employed at any point of time. The petitioner in his statement before the Tribunal had stated that he was passing his days by doing manual labour now and then. There being no rebuttal it has to be held that the petitioner has not been gainfully employed during this period. The petitioner was only a daily rated workman and was getting Rs. 6/- per day. It cannot be known as to how many days he would have worked if he had remained in the same capacity with the Municipal Corporation for all these years. Ordinarily, I would have sent this case back to the Industrial Tribunal for determining the question of back wages but considering the fact that the petitioner has been out of employment since 1967. I feel that it is not in the interest of justice that this matter should be delayed for any further period. In the circumstances, I am of the considered opinion that the ends of justice would be met if the petitioner is awarded a sum of Rs. 20,000/- in lump sum towards back wages and is reinstated with immediate effect.

9. For the reasons recorded above, I make the rule absolute and while quashing the award dated 4th October, 1972. Direct that the petitioner be reinstated with immediate effect and be paid Rs. 20,000/- in lumpsum towards back wages. The petitioner will also be entitled to his costs in this petition. Counsel's fee Rs. 300/-.