Municipal Corporation Of Delhi vs P.L. Singhla & Anr.
1994 Latest Caselaw 592 Del

JUDGMENT

Devinder Gupta, J.

1. Award dated 13.5.1991 (Annexure H) passed by Shri P. L. Singhla, Presiding Officer, Industrial Tribunal No. II Delhi (respondent No. 1) in I.D. No. 28 of 1979/353 of 1984 is under challenge in this writ petition filed under Article 226 of the Constitution of India at the behest of the Municipal corporation of Delhi (hereinafter referred to as the "Management").

2. The following dispute was referred for adjudication of the Tribunal between the Management and its workmen (respondent No. 2) :

"Whether the L.D.Cs. posted as Steno Typists (Stenographers Grade III) during the year 1976-77 and 1978 against vacant posts are eligible for regularisation as Steno typists (Stenographers Gr. III) in the pay scale of Rs. 330-560? If so, from which date and what further directions are necessary in this regard?"

The Industrial Tribunal answered the reference in favor of the workmen holding that they had worked as Steno typists for the last about 15 years and, therefore, they are entitled to the pay of Steno-typist Grade III from the date of reference, namely, 28.4.1979. Workmen who earlier held the posts of L.D.Cs. and had been posted as Stenotypist (Stenographer Gr. III) during the years 1976-77 and 1977-78 against vacant posts were held eligible for regularisation as Steno-typist (Stenographer Gr. III) in the pre-revised pay scale of Rs. 330-560 w.e.f. the date of reference, namely, 28.4.1979.

3. Some of the undisputed facts are that in the year 1972 Management framed recruitment regulations for the post of Stenographer Grade III which, inter alia, provided that the said posts of stenographer would be filled up on the basis of a competitive test provided the candidates fulfill the other conditions as stipulated in the regulations. This post of Stenographer Grand III, under regulations, is to be filled in from amongst L.D.Cs. possessing the knowledge of shorthand and typing. The workmen in this case (numbering about 19) were working as L.D.Cs. and by virtue of various orders passed between 29.12.1976 to 24.1.1978 were appointed against the vacant posts of Stenographer Grand III which appointments were made after inviting applications. Instead of paying to them the scale of post of Stenographer Gr. III, they were paid their own pay scale of L.D.Cs. A dispute was raised by the workmen for paying them the wages commensurate with the work being carried on by them, namely, that of Stenographers Gr. III and for regularising their services against the said posts. On the Management declining to accept the request, a reference was made on 28.4.1979. On 27-7-1979 workmen submitted their statement of claim before the Industrial Tribunal to which written statement was filled by the management on 18.10.1979. Rejoinder was filed on 7.9.1979. An application was submitted by the workmen for interim relief during the pendency of reference proceedings. On 2.2.1980 by way of an interim award the Industrial Tribunal restrained the Management from making any reversion of the workmen from the post of Steno-typists to that of L.D.Cs. and to maintain status quo ante in regard to those workmen who had been reverted and posted as L.D.Cs. This interim award was challenged by the management by filling civil writ petition in this Court which was dismissed against which S.L.P. (Civil) 9629 of 1980, was preferred in the Supreme Court which was ultimately disposed of on 23.10.1980 being interlocutory in nature. The Industrial Tribunal, however, was directed to dispose of the reference within a period of six months. Both sides were directed to cooperate with the Tribunal in disposing of the matter promptly.

4. The Tribunal on evidence produced before it found that the workmen had in fact been appointed against vacant posts of Steno-typist Gr. III and while appointing them their suitability to the posts had also been adjudged. They had been working satisfactorily as Steno-typists. Nothing incriminating had been recorded in their Confidential Rolls. Rather their services had been highly appreciated. In this background, the reference was answered allowing the claim of the workmen for regularisation and as regards their pay.

5. At the time of hearing none appeared for the petitioner. With the assistance of Mr. Rai, appearing for the workmen, I have gone through the entire record.

6. Main ground of challenge on merits appears to be that the Tribunal failed to appreciate Management's submission that workmen, who were appointed as L.D.Cs. could not be promoted as Stenographers since they had neither qualified any test, nor did they apply for competitive test as laid down in the recruitment regulations. The award regularising the services of the workmen as Stenographers is bad in law since the eligibility conditions for appointment to the post of Steno-typists were not complied with by the workmen. Regularisation of L.D.Cs. to the post of Stenographers Gr. III on the basis of impugned awards amounts to giving a go by to the eligibility conditions prescribed in the regulations. Workmen had neither any right to the post nor they appeared for the test which is a sina qua non for being appointed to the post of the Steno-typist Gr. III. Mere holding of the post by the workmen in officiating capacity or on temporary basis cannot result in conferring the status of regular appointment. The Management has also taken a ground that when there has been undue delay in finalising the adjudication proceedings due to in-action on the part of the workman, the award is vitiated.

7. The grounds on which the award is under challenge cannot be said to be such on which the award may be set aside in writ jurisdiction on the basis of the facts provide on record before the Industrial Tribunal. On the ground of delay in adjudication I have been taken through, by the learned counsel for the workmen through various orders passed from time to time in the proceedings by the Tribunal from 3.5.1983 to 29.10.1989. Looking at the various orders, which need not be repeated the only interference which can be drawn and has rightly been drawn by the Tribunal is that the negligence is mainly attributable to the Management. Adjournments were sought by the Management from time to time and at occasions some coercive steps had to be taken by the Industrial Tribunal in proceeding the presence of the Management before it.

8. The workmen, as noticed earlier, were working as L.D.Cs. in the petitioner Management. Against vacant regular posts they were appointed by virtue of various orders from 29.12.1976 to 24.1.1978. Before each appointment the Management satisfied itself about the competence and efficiency of the workmen in shorthand and typing. In order to high-light this fact a noting of Shri B. S. Banerjee, the then Director (Personnel), which was duly proved on record before the Tribunal, deserves to be extracted :

"It appears from the above note and also from the notes in the linked file that some LDCs were posted against the vacant posts of Steno-typists in their own pay scale after ascertaining their ability in shorthand though a written test in General English was not held as was required under the R. Rs. These LDCs are still working against the post of Steno-typists and their dispute regarding regularisation is pending in the Industrial Tribunal Delhi for the last about 7 years."

"Since the LDCs have been working as Steno-Typists for the last about 8-9 years we may place the proposal before the Establishment Board. Their is also a Court case pending but it will take long time to decided the case."

9. It will be pertinent to mention here that the Management was aware of the fact that the workmen who earlier had been appointed as LDCs were in fact functioning as Steno-typists against regular vacant posts and as per the note it appears that the Management was also anxious in giving to them the regular status. On 10.3.1987 hearing before the Tribunal was postponed, in view of the understanding given on behalf of the understanding given on behalf of the Management that the Management was going to consider the demands of workmen favorably.

10. No doubt the service regulations, which were in force at this time provided that the post of Steno-typist would be filled up by the Management on the basis of a competitive test, provided other conditions as contained in the recruitment regulations regarding eligibility were fulfillled. But this requirement of qualifying competitive written test in General English appears to have been dispensed with subsequently as it will appear from another note of Mr. B. S. Banerjee (Director Personnel), in which it is stated that against the vacant posts of Steno-typist, L.D.Cs. were posted in their own pay scale, after ascertaining their efficiency in shorthand though written test in general English was not held as was required under the recruitment regulations. The Standing Committee vide its resolution No. 647 dated 11.7.1985 had resolved that while making recruitment to the post of Steno-typists only shorthand test should be conducted and written test in general English need not be conducted since it was not the practice in the Staff Selection Board. On the basis of this resolution of the Standing Committee, Management had also conducted tests in the year 1986 for the Steno-typist.

11. The aforementioned facts amply show that at the time of posting of the workmen against the post of Steno-typist it was duly ascertained that they were well conversant with shorthand and typing and that they were suitable for the job. Written test in general English later on appears to have been dispensed with. They satisfactorily performed their job as Steno-typists and have now by this time put in almost 18 years of service. Their posting was against the vacancies which were in existence. In these circumstances, award of Industrial Tribunal cannot be said to be bad in law. In the ground stated in the writ petition it is no where demonstrated that the award is not based on evidence adduced before the Tribunal. On appreciating the evidence recorded before it, the Tribunal recorded a finding that workmen had been satisfactorily performing the job continuously against the posts against which they were appointed by various orders though they were not paid the same wages which were otherwise available to the post in question. Number of decisions have been cited by learned counsel for the workmen, which need not be referred to except by making a reference to a decision of the Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation where daily rated workers, working over for three years were denied confirmation on the ground of lack of educational qualification. It was held that practical experience is a sure guide to assess the suitability and three years experience would be sufficient for confirmation. In para 6 of the report it was held that

"The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointment were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications.'

12. In the instant case, the experience gained by the workmen is of 18 years and when they were deputed against the posts, their suitability to the job was ascertained by the Management. Allowing the petition now after 18 years and quashing the award would not only he hard and harsh but will be contrary to settled proposition in law that when an employee has served for a number of years, after being recruited against a vacant post without break, he is entitled to regularisation against the said post.

13. In view of the above, I do not find any stands ground to interfere in the writ petition which is dismissed with costs quantified at Rs. 2,000/-. Interim stay passed earlier stands vacated.