Suresh Kumar And Another vs M.C.D. And Others
2001 Latest Caselaw 1205 Del

ORDER

Dr. Mukundakam Sharma, J.

1. As the facts and the issues arising for my consideration in these two writ petitions are similar, I propose to dispose of both the writ petitions by this common judgment and order.

2. The petitioners in both the writ petitions seeks for the same reliefs praying for a directions to the respondents to regularise the services of the petitioners and to give them equal pay for equal work. According to the petitioners they were appointed as Safai Karamcharis and Chowkidars and that they have worked sincerely and devotedly throughout for more than 240 days in the respondent corporation without there being any complaint regarding their services. It is also stated in the petitions that since the petitioners were appointed against vacant and duly sanctioned posts and had worked for more than 240 days, their services are required to be regularised and they are require to be paid equal pay as is being paid to regular employees of the corporation.

3. The respondent filed a counter affidavit contending, inter alia, that the engagement letters of atleast three petitioners in CWP. No. 4142/99, namely - petitioner Nos. 11, 77 & 22 are fake and are not genuine and the concerned and the responsible official of the petitioner had verified that the said engagement letters do not carry proper signatures. It is also stated in the counter affidavit that serious disputed questions of fact are involved in these petitions and, therefore, the petitioners should have approached the appropriate forum for redressal of their grievances.

4. It is the stand of the respondents in the other writ petition, namely, C.W.P. 4484/99 that the engagement letters of all the petitioners are fake and are not genuine. It was further stated that the engagement of those petitioners in whose case engagement letters were issued by the respondents, was not done through the normal process, namely, after proper scrutiny by the competent body, which is also required to be approved by the Screening Committee and since no approval whatsoever of the Screening Committee was obtained in the cases of the petitioners, their very engagement was illegal and void. It is also stated that the petitioners have worked only for a very short period and, therefore, they cannot have any claim for regularisation of their service.

5. Mr. Rishikesh, appearing for the petitioners, vehemently submitted that the job and the work, which the petitioners were doing during their tenure of service, were of permanent nature and were against sanctioned posts and, therefore, they are required to be regularised in accordance with law, in terms of various decisions of Supreme Court. He further submitted that one set of casual employees cannot be substituted by another set and, therefore, the action of the respondents in discharging the petitioners in order to employ another set of casual employees cannot be sustained. He further submitted that the respondents were required to conduct an enquiry before holding that some of the engagement letters were fake and not genuine and no such enquiry having been conducted by the respondents before holding that the said engagement letters were fake, the entire action of the respondent corporation is liable to be set aside the quashed.

6. So far the question with regard to maintainability of the writ petitions is concerned, counsel appearing for the petitioners submitted that the respondents cannot be said to be an 'industry' within the meaning and ambit of the definition in the Industrial Disputes Act and, therefore, the petitioners cannot raise any industrial dispute and as such there is no alternative efficacious remedy and the present petitions are maintainable.

7. Mr. Raman Duggal, appearing for the respondent corporation, relied upon various decisions of the Supreme Court and this Court and submitted that whatever contentions are raised in the present petitions, they all relate to serious disputed questions of fact and, therefore, the same cannot be raised by filing these petitions. He further submitted that most of the engagement letters are fake and whichever genuine engagement letters were issued to the petitioners by the respondents were meant for engagement for a very short period and, therefore, they cannot prefer any claim for regularisation. He further submitted that since appointment letters of most of the petitioners were fake, it should be held that the petitioners have not come to the court with clean hands and, therefore, the writ petitions should be dismissed.

8. In the context of the aforesaid submissions of the counsel appearing for the parties, I proceed to decide the matter taking notice of the facts of the cases and also the decisions relied upon by the counsel appearing for the parties.

9. The main thrust of argument of the counsel appearing for the petitioners is that the respondent corporation is not an industry and, therefore, the petitioners cannot seek their remedy by raising an industrial dispute. The aforesaid submission is apparently contradictory to the statements of the petitioners in the writ petitions. The specific stand of the petitioners in the writ petitions is that all the petitioners have worked for more than 240 days and, therefore, in accordance with the provisions of the labour laws, they are to be regularised in service. In the context of such stand taken in the writ petitions, the stand that is sought to be taken by the counsel appearing for the petitioners, at the time of arguments, is contradictory. Even otherwise, the said issue as to whether the respondent corporation is an industry or not could be decided even when an industrial dispute is raised. The same could be one of the issues before the concerned forum and could be agitated and could be decided by the said forum. As a matter of fact similar issue was raised in one of the Industrial disputes out of which a writ petition was filed and disposed of by a decision rendered on Management of Horticulture Deptt. Vs. Trilok Chand, 2000 (1) AD (Delhi) 416.

10. In Satyanarayan Sharma & Others vs. National Mineral Development Corporation Ltd. & Others , it was laid down by the Supreme Court that if there are no vacancies or work available in an establishment, question of absorption or regularisation would not arise for consideration. In Delhi Development Horticulture Employees' Union vs. Delhi Administration, Delhi & others reported in 1992 (2) Labour Law Journal 452 the Supreme Court held that for regularisation, there must be regular and permanent posts or it must be established that although the work is of regular and permanent nature, the device of appointing and keeping the workers on ad hoc or temporary basis has been resorted to, to deny them the legitimate benefits or permanent employment. In State of U.P. & Others Vs. U.P. Madhyamic Shiksha Parishad Shramik Sangh & Another, the Supreme Court held that creation of a post is a condition for filling up the post on permanent basis and that the exigencies of the administration and the need for the creation of number of posts are matters of executive policy by the appropriate Government. It was also held that unless posts are created, the persons are not entitled to be fitted into any regular post and they are not entitled for payment of equal wages so long there is no post created in that behalf. In Sh.D.P.Singh Vs. M/s. Enginnering Projects (India) Ltd. reported in 1995 I A.D. (Delhi) Ltd. reported in 1995 I A.D. (Delhi) 478, this court held that the remedy available under the Industrial Disptures Act is an adequate and efficacious altenrative rememdy and, therefore,e the writ petition was not competent. In Tarlok Chand & Others vs. National Industrial Development Corporation ltd. & Others, reported in 1994 II LLJ 1130 this court held that a plain reading of the petition and the counter affidavit also shows that the allegations of fact in the petition are disputed by the respondents and as such there are disputed questions of fact, which of could be more effectively agitated by seeking a remedy under the provisions of the Industrial Disputes Act, which is the appropriate forum to go into such disputed questions of fact after looking into the evidence that may be adduced by the parties. In Chet Ram vs. Union of India, reported in 1998 IV A.D. (Delhi) 816 this court held that when a party has got an effective alternative remedy, it is a matter of discretion of the High Court in exercising its powers and the writ petition was dismissed on the ground that alternative remedy was available. In Ajay Kumar & Others vs. Govt. of N.C.T. of Delhi & Others, it was held by this court that the petitioners were engaged on daily wage for specific period with clear stipulation that such engagement will not give any benefit to the petitioner for the purposes of seniority or claim for regular appointment and that it is also not disputed that neither the posts were advertised for filling up on regular basis nor a requisition was sent to the Employment Exchange for engaging the persons on daily wage basis. It was, therefore, held that as no selection process was at all conducted under the relevant rules, which laid down the procedure for filling up of the posts, the appointments were therefore the back-door entries and, therefore, no case of regularisation is made out. It was also held in the said decision that merely because same persons having worked for some period on daily wage basis after being appointed through back door policy, no right accrues to them to continue or even get the extension after the last extension and that they would have no right to continue after that date. The legal principles that emerge from the aforesaid cases are therefore, clear.

11. Since the counsel appearing for the petitioners, during the course of his arguments submitted that the respondent is not an industry, it is required to look into the aforesaid aspect also. It may be stated that no such specific stand was taken by the petitioners in the writ petitions. Since the issue was not raised in the pleadings of the parties, no evidence has been placed on record by either of the parties in order to decide the said issue in these writ petitions. It is contended by the counsel that even in absence of any material, such a question could be determined as to whether the respondent is an industry or not in terms of Section 2(5) of the Industrial Disputes Act. However, I am constrained to hold that unless sufficient evidence is placed on record, it is not possible to hold either way as to whether the respondent is an industry or not. Merely because the respondent is connected with the welfare measures, it cannot be said that it would not be an industry and would be excluded from the purview of the Act.

13. A seven Judges Bench of the Supreme Court in the case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and others, laid down triple test for determining whether a particular establishment is an industry or not. The triple test is (i) where there is systematic activity (ii) organized by cooperation between employer and employee (the direct and substantial element is chimerical) and (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes. The Apex Court further held that absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other section. It was also held that the true focus is functional and the decisive test is the nature of activity with special emphasis on the employer-employee relations. It was further held that if the organisation is a trade or business, it does not cease to be one because of philanthropy animating the undertaking.

14. In view of the aforesaid decision of the Supreme Court, it was for the petitioners to put on record sufficient materials to prove as to how the respondent is not an industry. Specific contention of the respondent corporation in the counter affidavit is that atleast three petitioners in one of the writ petitions and all the petitioners in the other writ petition have based their rights on fake engagement letters. The said statement is based on a report which was established after a thorough enquiry was made by the respondent corporation. Although counsel appearing for the petitioners disputed the aforesaid averments, the same itself also gives rise to a disputed question. There are many other disputed questions involved such as - whether there was any sanctioned or permanent post or not, whether the job performed by some of the petitioners was of permanent nature. All these could be decided only after enough materials are placed on record by the parties.

15. The petitioners have an efficacious alternative remedy of raising an industrial dispute in terms of settled position of law, to which reference is made hereinabove and in the said proceeding itself an issue could also be framed and decided as to whether the respondent corporation is an industry or not, if the same is agitated. Taking all the aforesaid factors into consideration, I hold that no relief could be granted to the petitioners, as sought for, in these writ petitions and it would be open for the petitioners to take recourse to the alternative efficacious remedy available to them by raising an industrial dispute. The writ petitions are therefore, dismissed with liberty as aforesaid.