Delhi Fire Service Karamchari ... vs Municipal Corporation Of Delhi ...
1995 Latest Caselaw 828 Del

JUDGMENT

Mohd. Shamim, J.

(1) One of the eternal conflicts which this life is made of is in between an employer and an employee with regard to the service conditions of the latter. The former wants to have as much work as possible in lieu of the remuneration paid to the latter by way of wages. The worker on the other hand wants as many facilities as possible for the services rendered by him. This conflict has been, since the genesis of the world and it will continue till the end of the world since it is innate in the nature of the man. The function of the Court in this tug of war is that of an umpire. It has been assigned this role to strike a balance and to do justice in between the parties. While shouldering this responsibility this Court Is not oblivious of the fact that to judge the others correctly is as difficult as to come out of one's skin.

(2) The present petition is a manifestation of the said conflict since the petitioners through the present petition seek a direction to be Issued to the respondents Nos. 1, 2 and 4 to regulate their working hours in such a way that they are not required to work more than 8 hours a day.

(3) Brief facts which led to the presentation of the present petition are as under : that the petitioner No. I is a registered trade union duly registered with the Registrar of Trade Unions, Delhi. It consists of members who are employed with respondent No. 2 in different capacities. The Delhi Fire Service prior to the enforcement of D.M.C. Act, 1957 was under the control of Delhi Administration. Subsequent to the enactment of the said Act, it was transferred to the respondent No. 1. The respondent No. 2 o.n account' of peculiar nature of its functions is a 'factory' as defined under the Factories Act inasmuch as it carries on "manufacturing process" within the meaning of Section 2(k)(ii) of the Factories Act. It has got more workers than the stipulated number as provided under Section 2(a) of the Factories Act.

(4) The respondent No. 2 is also an Industrial 'Establishment' as defined under Section 2(a) of the Industrial Employment (Standing Orders) Act. 1946. It has got more than 100 workers in its employment. Hence the provisions of the said Act are fully applicable to its employees.

(5) The petitioners Nos. 2 and 3 have rendered more than 15 years service. The petitioners and all their collogues below the rank of officers i.e. Fireman, Leading Fireman, Selection Grade Fireman, Drivers were required to work continuously for 144 hour before they could get a rest of one day till 1968. Thus the duty hours were far beyond the stipulated hours of work i.e. 8 hours as provided under the law. The petitioners and others objected to the same. Subsequently the hours of work were reduced to 120 hours continuous work before one could get a respite of one day. Pursuant to negotiations, it is only w.e.f. November 14, 1977 that requirement of continuous attendance has been reduced to 72 hours. Even the above working hours were agreed upon subject to the condition that immediate steps would be taken to..introduce double shift system so as none of the employees is required to put in more than 8 hours of work. The petitioner No. 1 on behalf of its members has been making repeated representations against the unjust and ill-treatment meted to the employees inasmuch as they are compelled and impelled to work for more than 8 hours i.e. continuously for 72 hours.

(6) The petitioner No 1 as a representative of the employees of the respondent No. 2 raised an industrial dispute in regard to the above. However, the. respondent No. 4 declined to refer the dispute to the Industrial Tribunal for adjudication vide communication dated June 21,1974. The petitioners and other employees are being threatened and scared by the respondents Nos. 1 and 2 to give in writing that they do not want the enforcement of double shift system. They are being pressurized to do so on or before November 30, 1976. Hence arose the necessity for the presentation of the present petition.

(7) Respondents Nos. 1, 2 and 4 have opposed the present petition, inter alia, on the following grounds; that the petitioner No. I is not the only Union to represent the employees of the respondent No.2. There are other Unions also besides the petitioner No. 2. The said Unions are thus necessary parties to the present proceedings. The respondent No. 2 is not a factory. It does not carry on any 'manufacturing process. The provisions of the Factories Act are not applicable to the respondent No. 2. The Delhi Fire Service is not an industrial establishment within the domain of Industrial Disputes Act. Hence neither the provisions of the Industrial Disputes Act nor that of Industrial- Employment (Standing Order) Act are applicable to the respondent No. 2. Double shift system has not been introduced on account of insurmountable difficulties. It is not possible to introduce three shift system of 8 hours each as it would lead to serious consequences e.g. enormous increase in expenditure inasmuch as in that eventuality the No. of the personnel would have to be increased by three fold. Provision has to be made for their residential quarters. There is no infrastructure for training the employees.

(8) Vast majority of the employees are against the introduction of even double shift system. Hence it was given up and not introdured. In case the shift system (8 hours daily) is introduced, it will deprive the employees of call allowance. Consequently the same is being opposed by them.

(9) Petition is false and frivolous and as such it is liable to be dismissed.

(10) Learned counsel for the petitioners. Mr. B. .S. Charva. has vehemently contended that the petitioners initially were required to work continuously for 144 hours and it was only thereafter that they were given the rest of one day. On objections and resistance from the other service employees, including the petitioners, the working hours were reduced to 120 hours. They were required to remain in attendance for five days and then they could take rest for one day. Subsequently, the working hours were reduced to 72 hours w.e.f. November 14, 1977. Thus the above working hours are more than the stipulated 8 hours duty as envisaged under the law. This is inhuman as a corollary whereof the petitioners have to work just like a machine. They do not have any leisure. Even they are deprived of the rest which is so much essential in order to regain lost strength. The above working hours are in violation of Articles 14 and 21 of the Constitution of India.

(11) Learned counsel for the respondents, on the other hand, has urged to the contrary. According to him, there is no specific pleading with regard to enforcement of 8 hours duty. Hence, there is no question for the grant of the said prayer. There is absolutely nothing on record to substantiate the argument raised by the learned counsel that 48 hours duty is telling heavily on the health of the employees of the Fire Service Department. In any case there is no such averment.

(12) The next limb of the argument of the learned counsel for the respondents is that the petitioner No. I which is a Union is not the representative of all the employees. There are other Unions besides the petitioner also who oppose the three shifts system comprising of 8 hours duty.

(13) The other contention raised by the learned counsel for the respondents is that vide Circular dated April 27, 1995 all the demands of the employees were met. Hence, it no more l?es in the mouth of the petitioners to demand three shift system of 8 hours duty. The 48 working hours system was introduced vide the above circular as per the demand of the petitioners. In case three shift system of 8 hours duty each is introduced it will entail a huge expenditure inasmuch as the strength of the employees would have to be increased three-fold. Provision would have to be made for their residential quarters. Besides that there is no infrastructure for training the personnel

(14) I have heard the learned counsel for both the parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thought thereto.

(15) The contention of the learned counsel for the respondents that there is no pleading with regard to the introduction of three shift system and as such, the said prayer cannot be granted, does not hold any water.

(16) A close scrutiny of the petition reveals that the petitioners have pleaded with regard to three shift system consisting of 8 hours Municipal Corporation of Delhi & Ors. each (vide paras 5 and 6 of the writ petition). Besides that there ?s a specific prayer which is the only prayer now being pressed by the petitioners through the present writ petition.

(17) Furthermore, there is a counter affidavit filed by the respondents sworn by Shri S. K. Dheri, Chief Fire Officer, Delhi Fire Service. He has admitted therein that Municipal Corporation Workers' Union vide their demand letter No. DMWU/fire Service (50) 124 dated April 22, 1960 raised demands for introduction of three shift duty of 8 hours each in Delhi Fire Service on the ground that such duty hours were prevalent in the other fire services in the Metropolitan Cities. Thus the respondents have themselves admitted through their counter affidavit that there is a demand for introduction of three shift system of 8 hours each and the same was raised as far back as the year 1960. I thus feel that this argument in the above circumstances is not available to the learned counsel for the respondents.

(18) There is another aspect of the matter. Furthermore, a petition where through a petitioner alleges viola ion of his fundamental rights and comes forward for redressal of his grievances such a petition, this court feels, cannot be flung to the winds simply on the ground that there are no elaborate pleadings of the petition is ill-drafted. Procedural rules laid down with regard to the pleadings in the Code of Civil Procedure would not come in the way of the Court to grant such a relief.

(19) The above view was expressed in Biswa Ranjan Mitra v. Calcutta State Transport Corporation and others, 1985 LAB. I.C. Noc 43 (CAL). (1) "The jurisdiction under Art. 226 is special or extraordinary. It is not ordinary jurisdiction civil or criminal. Technical rules of procedure laid down in the Civil P.C. do not apply to proceedings under Art. 226. But the rules of justice for repose and peace to prevent the waging of the same legal battle against the same opponent over again or the taking up of long dormant claims apply to proceedings under Art. 226."

(20) To the same effect are the observations of a Division Bench as reported in Tapan Kumar Jana v. The General Manager, Calcutta Telephones and others, 1981 LAB. I.C. Noc 68 (Cal)(2) "It is well settled that if a case for the interference by High Court has been made out in the writ petition, it will not fail because of unsatisfactory or ilia? ti'siJc prayers. The High Court has jurisdiction to allow an amendment of the prayers or to mould the same itself so as to grant proper relief to a writ petitioner."

(21) The next contention of the respondents that in case three shift system is introduced it will lead to serious consequences inasmuch as the strength of personnel of the Fire Service would have to be increased by three-fold, which would lead to enormous increase in expendituure, huge amounts will have to be spent for constructing the residential quarters and on training of personnel for which the existing facilities fall short of to meet the requirement, is without any merit. To my mind, if the demand of the petitioners is genuine and reasonable and in consonance with the principles of justice and equity, it then has got to be allowed irrespective of the consequences which may ensue by conceding the said demand. The Court will not fold its hands and decline to grant the relief to a petitioner simply because it would lead to expenditure on the part of the respondent. Paucity of funds, a? argued by the learned counsel for the respondents, is no defense for rejection of a genuine and just demands.

(22) A question very much akin to the question in nand arose in Ratlam Municipality v. Vardhichand, .(3) "The statutory setting being thus plain the municipality cannot extricate itself from Its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under Section 123 of the Act. . . . The pica of the municipality that notwithstanding the public nuisance financial inability validity exonerates it from statutory liability has no juridical basis .... Likewise Section 123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachyderm governmental agency may legally defy duties under the law by urging in self-defense a self-created bankruptcy or perverted expenditure budget. That can-not be."

(23) To the same effect are the observations of a Single Judge as reported in L. K. Koolwal v. State, .

(24) The contention of the learned counsel for the respondents that the demands of the petitioners have already been met and conceded through a circular letter dated April 27, 1995 and the same have been accepted by most of the workers is also devoid of any force. The said circular dated April 27. 1995 by any stretch of imagination is not a compromise/agreement/settlement in between the parties i.e. the petitioners and the respondents herein. It is simply a one side order whereby 48 hours working systems was introduced instead of 72 hours. Thus the said circular is in no way an obstruction in the way of the petitioners.

(25) Admittedly the petitioners are demanding three shift system consisting of 8 hours each. The said circular thus does not meet the demands of the petitioners.

(26) Learned counsel for the respondents, Mr. K. K. Bhuchar, then contends that the petitioners have not placed on record anything to show and prove as to how 48 hours work system which was introduced w.e.f. April 27, 1995 is detrimental to and hazardous for the health of Municipal Corporation of Delhi & Ors. the workers. It is true that the petitioners have not placed on record any document to show as to how the said system is telling heavily on the health of the employee. However, this Court feels that they were not required to undertake the said exercise. The Court can take judicial notice of the fact that a man is not an inanimate and insensate object of Nature. He is a human being, in flesh and blood. His capacity to work is limited. He needs both rest and leisure. Nobody can be expected to work continuously for 48 hours at a stretch.

(27) Learned counsel for the petitioners, Mr. Charya, has contended that 8 hours duty system has been introduced in the Fire Service Departments of other States of the country. In this connection he has placed on record an affidavit sworn by Shri B. L. Sharma. Besides the said affidavit the petitioners have also placed on record quite a good number of letters received from other Unions. Ex. PX13A is a letter from one Tejinder Singh, General Secretary, Faridabad Fire Service Employees' Union, which shows that the duty hours for the employees are of 8 hours duration and they perform their duties on shift basis. Ex. PX14 is a letter from Chander Prakash Gussain, Fire Service Officer, Central Secretariat Fire Service, North Block, New Delhi. It also shows that the employees over there are working in three shifts of 8 hours each. To the same effect is the letter dated August 24, 1995 from one Rajendra Nath Bhattacharya, Publicity Secretary, I.P. Station, Desu Workers' Union. Then there is a letter dated September 18, 1993 from Shri Khim Singh, General Secretary, International Airports Authority of India Workers' Union.

(28) The respondents in their reply to the said affidavit have filed an affidavit sworn by Shri S. K. Dheri, Chief Fire Officer. He has not denied the fact that the double shift system has not been introduced in Calcutta and Bombay. However, according to him, the double shift or three shift system is not in the interest of Fire Personnel (vide para 21).

(29) It thus can be safely concluded from above that the Fire Service Department in other States and even in Delhi have got three shift system of 8 hours each. Thus it does not stand to reason as to why the same cannot be introduced in Delhi Fire Service. The conditions of working of the Fire Service Department in all the States and in different departments of the Union Territory of Delhi must be the same. The Delhi Fire Service Department should not be treated as a class by itself with different service conditions for its employees.

(30) A situation very much akin to the situation in hand accuse when the Fire Service Department Personnel claimed their superannuation age as 58 years keeping in view the retirement age of other employees of the Municipal Corporation of Delhi. It was opined in Madan Lal v. Delhi Fire Servic'e etc. 1983 Lab I.C. 1335.(5) "The amend- ment made in Reg. 3 of the Delhi Municipal Corporation Service Regulations, 1959, by the Municipal Corporation Delhi, the result of which is that the age of retirement of the operational staff like the petitioners up to the rank of Leading Fireman shall be 53 years and the provisions of Fundamental Rule 50 so far as these relate to the age of retirement, shall not apply to such operational staff of Delhi Fire Service is arbitrary, unconstitutional and ultra vires. Thus in the absence of any relevant material indicating any explanation for fixing the age of superannuation lower than fixed for other municipal services or even of other Fire Fighting Services the impugned order compulsorily retiring the petitioners suffers from 'he infirmity of being arbitrary and unreasonable and cannot be allowed to stand.. .

(31) It is to be found that all over India without exception the age of superannuation has been fixed at 58 then unless some reasonable explanation can be given, it would be difficult to resist the charge of arbitrariness in Delhi. After all Delhi is not such a peculiar creature or the conditions so special, as being unique. If it is industries cum-region basis then surrounding areas of Punjab, Himachal Pradesh, U.P., Rajasthan, M.P. all have fixed the age of superannuation at 58 years. There is no peculiar difference in the climatic on general physical requirements or availability of such personnel in this as well as other areas."

(32) Thus it is manifest from above that to treat the petitioners and their colleagues differently from other employees is clearly in violation of Article 14 of the Constitution of India.

(33) It has then been urged for and on behalf of the petitioners that to ask the petitioners to work for 48 hours is clearly in violation of Article 21 of the Constitution of India which grants, protecion of personal life and liberty. Right to personal life and liberty does not mean an animal existence. It also does not imply a dull,, drab and monotonous life. It is wide enough to embrace within its fold to live with dignity and honour which would mean the right to leisure right to take rest, right to enjoy the life. If a man or an employee is deprived of all these things it would be a clear breach of his Fundamental Rights guaranteed to him under Article 21 of the Constitution of India. Thus the life as referred to in Article 21 of the Constitution of India means a life full of colour with all its hues. A man is not an inanimate and insensate object of Nature. God has endowed him with multifarious faculties. One of the best faculties which God has bestowed upon him is that he can think. It distinguishes him from all other Creatures of God Almighty. 'Man. is a reed, the .weakest in nature but he is a thinking reed.' (Pascal Pen- sees VI). Thus a man is not satisfied with his two meals only which he earns by dint of his hard labour by working from morn till dust He needs some thing more than that i.e. leisure to enjoy life. It is said the Slid of labour is to gain leisure; time to look after his family members; if he feels enervated and exhausted after arduous labour he. deserves well earned rest- All these things are part and parcel of life to make it worth living. Thus a man bereft of all these things cannot be said to be 'living, a life within the domain of Article 21 of the Constitution of India. Life denuded of all these things is inconceivable and would be a meaningless existence "Those who think man as essentially animal think of society as simply the jungle writ large-a jungle in which every animal survives or perishes by the relative sharpness of his claws, teeth and brain'." Franjik S. Hickman.

(34) "WE have exalted man's importance by making his welfare the measure of all things; we have at the same time, belittled him by assuming that he is nevertheless nothing in himself." Joseph Wood Krutch,

(35) The above view was given vent to in Bandhua Mukti Morcha v. Union of India, Air 1984 Sc 811, ....(6) "It is the fundamental right of every' one in this country, assured under the interpretation given to Article 21 by this Court in Frances Mullin's Case to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least. therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities) just and humane conditions of work and maternity relief. These arc the mini'mum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials."

(36) While animal advertising on the Fundamental Right of a citizen enshrined in Article 21 of the Constitution of India it was observer by the Hon'ble Supreme Court in C.E.S.C. Limited v. Subhash Chandra Bose. "The right to social justice is a fundamental right. Right to livelihood springs from 'he right to life guaranteed under Article 21. The health and strength of a worker is an integral facet of right to life. The aim lot fundamental rights is to create an egalitarian society to free ail citizens from coercion or restrictions by society and to make liberty available for all. Right to human disunity. development of personality, social protection, right to rest and leisure as fundamental human rights to common man mean nothing mere than the status without means."

(37) It was- further observed In-para' 32 of the said judgment. . "The term health implies more than an absence of sickness. Medical care. and health facilities not only protect against sickness but also ensures stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the workers' best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful, ecomonic. social and cultural life. The medical facilities are, therefore, part of social security and like gilt-edged security, it would yield un mediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc. Health is thus a state of complete physical, mental and social well being and not merely the absence of disease or infirmity. In the light of Articles 22 to 25 of the Universal Declaration of Human Rights, International Convention on Economic, Social and Cultural Rights, and in the light of socioeconomic justice assurer in our Constitution, right to health is a fundamental human right to workmen. The maintenance of health is a most imperative constitutional goal whose realisation requires interaction of many social and economic factors. Just and favorable condition of work implies to ensure safe and healthy working conditions to the workmen."

(38) It was then observed in Delhi Transport Corporation v. D.T.C. Mazdoor Congress a.nd Others, "Both the society and the individual employees, therefore, have an anxious interest in service conditions being well-defined and explicit to the extent possible. The arbitrary rules, such as the one under discussion, which are also sometimes described as HenryVIII Rules, can have no place in any service conditions."

(39) The above discussion would not be complete without citing a few lines from the observations of the Hon'ble Supreme Court as reported in Consumer Education & Research Centre and Others v. Union of India and Others, ."The expression life' assured in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure.... The expanded connotation of life would mean the tradition and cultural heritage of the persons concerned. In State of H.P. v. Umed Ram Sharma , this Court held that the right to life includes the quality of life as understood in its richness and fullness by the ambit of the Constitution. Access to road was held to be an access to life itself in that State."

(40) Furthermore, in an egalitarian Society and social welfare State a person should not be asked to do work which he does not have the Municipal Corporation of Delhi & Ors. capacity to undertake. Thus to ask a man to work continuously for 48 hours is beyond the capacity of a man and he would collapse under the weight of his work without any leisure and without any rest. In this connection, Prophet Mohammad directed employers to make the life of the workers enjoyable. It was observed : Don't put on them such burden as will overwhelm them. If you burden them with such work, you must assist them. In this connection it has been ordained in Holy Quran "Allah does not burden a person beyond his capacity."

(41) Hence the employers have been directed to take only that much of work from their employees as they are in a position to do easily, without straining their capacity to its breaking point.

(42) The last, but not the least contention, urged on behalf of the respondents is that majority of the workers are opposed to the introduction of three shift system. To my mind, the said argument is without any basis whatsoever. The present petition has been filed by the Delhi Fire Service Karamchari Sangh. Respondent No. 3 is Delhi Fire Service Employees' Union. There is an affidavit filed by both the above said two Unions. Both have almost all the workers as their members. The Secretary of respondent No. 3, Shri Kaptain Singh) has filed an affidavit where through he has supported three shift duty system of 8 hours each.

(43) In view of the above the said argument of the learned counsel does not hold any water.

(44) In the above stated circumstances, I feel the petitioners are entitled to succeed. The writ petition is allowed. Respondent Nos. 1, 2 and 4 are hereby directed to introduce three shift system of 8 hours duration each. They are granted six months time to introduce the same. During the above said period the working hours of the petitioner would be governed by the Circular dated April 27, 1995. However, the same would cease to operate after the expiry of the said period of six months and would be deemed to have been quashed.