Delhi Municipal Worker Union ... vs The Management Of M.C.D. & Ors.
1998 Latest Caselaw 1069 Del

ORDER

Cyriac Joseph, J.

1. The petitioners challenge an award dated 4.12.96 of the Industrial Tribunal No. III, Delhi by which it was held that the dispute referred to it for adjudication was not an industrial dispute and hence the tribunal could not adjudicate upon the reference.

2. The first petitioner, Delhi Municipal Workers Union is stated to be a registered trade union with the aims and objects, among other things of promoting and protecting the interest, rights and privileges of the employees working in the Municipal Corporation of Delhi, securing just and better working condition for them, and extending assistance in the case of illness, unemployment old age and death etc. The second petitioner is Shri Jai Singh S/o late Shri Bali who died in harness while working as Balder in the Municipal Corporation of Delhi. The third petitioner Smt. Rukman is the widow of late Shri Bali and the mother of Shri Jai Singh. The respondent are the Municipal Corporation of Delhi, the Presiding Officer, Industrial Tribunal III and the Secretary Labour, Government of NCT Delhi.

3. According to the petitioner, one of the working conditions of the workmen working in MCD is in regard to appointment on compassionate grounds in cases where the workmen die in harness. The instructions of the management regarding appointment or dependents of deceased workmen on compassionate grounds have always been enforced by the MCD. Hence when Shri Bali, Balder in the MCD, expired on 23.6.92 his wife Smt. Rukman (petitioner No. 3) applied for appointment of her son Jai Singh on compassionate grounds. However, the management by their letter dated 23.12.93 rejected the application. The reason stated in Annexure- B letter for rejecting the application was: "your case regarding appointment on compassionate grounds does not cover under the prescribed policy. Hence your request cannot be acceded".

Against the rejection of the application a further representation was made to the Commissioner of MCD on 8.4.94. Since there was no response from the Management, petitioner No. 2 Shri Jai Singh approached petitioner No. 1, Delhi Municipal Workers Union and thereupon petitioner No. 1 took up the matter and represented to the management that Shri Jai Singh may be appointed on compassionate ground. Still there was no response from the management and hence petitioner No. 1 raised an industrial dispute. Since no settlement could be arrived at during the conciliation proceedings, respondent No. 3, Government of NCT Delhi, referred the following dispute for adjudication by the Industrial Tribunal:

"whether Shri Jai Singh s/o Shri Bali, Balder is entitled to be appointed on compassionate grounds and if so, what directions are necessary in this respect."

4. Petitioner No. 1 filed the statement of claim before the Industrial Tribunal. But the management did not appear or file any written statement despite service of notice. Hence the management remained ex-parte in the adjudication proceedings. Smt. Rukman and Shri Jai Singh adduced evidence by filing affidavits. However, without considering the claim for appointment on compassionate grounds on merits the adjudication proceedings were closed by the Industrial Tribunal after observing that the dispute referred to the Tribunal for adjudication is not an industrial dispute and that the tribunal cannot adjudicate upon the reference. In the impugned order dated 4.12.96, the learned Industrial Tribunal held that since Shri Jai Singh had never been in the employment of the management, he was not workman as defined in Section 2(s) of the Industrial Dispute Act and therefore the dispute between him and the management could not be an industrial dispute.

5. The only question that arises for consideration in this writ petition is whether the dispute referred to the Industrial Tribunal for adjudication is an industrial dispute or not. It is not necessary to consider the merits of the claim of Shri Jai Singh for appointment on compassionate grounds. If the dispute referred for adjudication is not an industrial dispute, the writ petition is liable to be dismissed. If the dispute referred for adjudication is an industrial dispute, the impugned order is liable to be set aside and the Industrial Tribunal is liable to be directed to proceed with the adjudication proceedings in accordance with law.

6. The expression 'Industrial dispute' is defined in Section 2(k) of the Industrial Dispute Act which is extracted below:

"(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"

From the above definition of 'industrial dispute' it is clear that even a dispute between an employer and his workmen which is connected with the non-employment of any person can be an industrial dispute. The beneficiary of the claim need not be a workmen of the employer at the time of raising the dispute. A dispute can be raised by the workmen of the employer even in respect of the non employment of any person who is not his workmen at the material time. In the judgment in Kays Construction Company (Pvt.) Ltd. Vs. Its workmen reported in AIR 1959 208, the Hon'ble Supreme Court has pointed out that it is well settled that a dispute which validly gives rise to a reference under the Industrial Disputes Act need not necessarily to a dispute directly between an employer and his workmen and that the definition of the expression 'industrial dispute' is wide enough to cover a dispute raised by the employer's workmen in regard to the non-employment of others who may not be his workmen aterial time.

7. In, this case, the dispute referred for adjudication was between the management of the Municipal Corporation of Delhi and its workmen represented by the Delhi Municipal Workers Union. In paragraph 16 of the writ petition, it is specifically stated that industrial dispute was raised by petition No. 1, Delhi Municipal Workers Union. In paragraph 18 of the writ petition it is stated that the statement of claim was filed before the Industrial Tribunal by petition No 1. These statements have not been disputed in the counter affidavit filed on behalf of the first respondent in this case. In Annexure G order issued by the Government of NCT of Delhi under Section 10(1)(d) and 12(5) of the Industrial Disputed Act, it is stated that the Secretary (Labour), Government of NCT of Delhi is satisfied that an industrial dispute in respect of the matters specified in the schedule exists between the management of M/s. Municipal Corporation of Delhi through its Commissioner and its workmen as represented by Delhi Municipal Workers Union. Hence it is clear that the dispute was raised by the Delhi Municipal Workers Union which represents the workmen of the Municipal Corporation of Delhi. However, it wod appear that the learned Industrial Tribunal lost sight of the fact that the dispute was raised by the Delhi Municipal Workers Union representing the workmen of the Municipal Corporation of Delhi and that the dispute was connected with the non-employment of Shri Jai Singh. The learned Tribunal proceeded on the wrong assumption that the dispute was between the MCD and Shri Jai Singh. Possibly the learned Tribunal was misled by the words "Shri Jai Singh s/o Shri Bali, deceased "workmen" shown within brackets after the word `workmen' in Annexure G order. The learned Tribunal might have also been misled by Annexure I statement of claim filed by the General Secretary of petitioner No. 1 trade union before the Industrial Tribunal in which the dispute was described as a dispute between the management of MCD through its Commissioner and its claimant Shri Jai Singh s/o Late Shri Bali, Balder through Delhi Municipal Workers Union. The learned Industrial Tribunal failed to note that the ispute referred for adjudication was raised by the workmen of MCD represented by Delhi Municipal Workers Union and not by Shri Jai Singh. Of course the dispute was connected with the non-employment of Shri Jai Singh son of deceased Bali and the Union was competent to raise such an industrial dispute. It may also be observed that according to the petitioner the right of dependents of workmen for appointment on compassionate grounds in cases where workmen die in harness is part of the terms of employment or conditions of labour. Hence, the dispute in this case may be stated to be connected with the terms of employment or with the conditions of labour of late Bali who was a Balder in the MCD.

8. In the light of what has been stated above, I am of the view that the dispute referred to the second respondent. Industrial tribunal for adjudication was an industrial dispute as defined in section 2(k) of the Industrial Disputes Act.

9. Hence the impugned award dated 4.12.96 is set aside. The Industrial Tribunal is directed to treat the dispute referred for adjudication as an industrial dispute as defined in Section 2(k) of the Industrial Dispute Act and to proceed with and conclude the adjudication proceedings afresh in accordance with law as expeditiously as possible.

The writ petition is allowed to the above extent.

There will be no order as to costs.