Delhi Transport Corporation ... vs The Presiding Officer, ...
2004 Latest Caselaw 1375 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner is aggrieved by an Award dated 22nd August 1985 passed by the Industrial Tribunal in ID No. 85 of 1979 (old) and ID No. 305 of 1984 (new).

2. The appropriate Government, through the Secretary (Labour) of the Delhi Administration referred the following question for adjudication by the Industrial Tribunal:-

''Whether the pay scales of the Security Staff up to the rank of the Asstt. Security Inspector need be revised, and, if so, what directions are necessary in this respect?''

3. By the impugned Award, it was held that Respondent No.3 (Workmen) are entitled to the pay scales of their counterparts in the Delhi Police. Consequently, an Assistant Security Inspector (ASI) was held entitled to the pay scale of Rs. 425-700, a Security Havaldar was held entitled to the pay scale of Rs.260-350 and a Security Guard was held entitled to the pay scale of Rs.225-308. All these categories of employees of the Petitioner were held entitled to their respective pay scales with effect from 1st October 1979, with subsequent increases from time to time.

4. Learned counsel for the parties were heard on 2nd, 8th, 28th, 29th and 30th September, 2004 when judgment was reserved.

5. Learned counsel for the Petitioner made two principal submissions, the first one having different facets and nuances.

6. It was submitted that the reference made to the learned Tribunal was incompetent in as much as fixing pay scales of the employees of the Petitioner involved the exercise of a statutory power. In this regard, reference was made to the Delhi Road Transport Authority Act, 1950 (the DRTA Act) and the Delhi Road Transport Authority (Scales of Pay) Regulations, 1950 framed there under (the 1950 Regulations); the Road Transport Corporations Act, 1950 (the 1950 Act) read with the Delhi Road Transport Laws (Amendment) Act, 1971 (the Amendment Act). On his turn, learned counsel for the Workmen drew my attention to the Delhi Road Transport Authority (Scales of Pay) Regulations, 1992 (the 1992 Regulations).

7. As an alternative to the above submission, it was contended by learned counsel for the Petitioner that if it is held that fixing the pay of the Workmen did not require the exercise of any statutory power, then the learned Tribunal was wrong in ignoring the well-settled considerations of region cum industry and the financial capacity of an employer to pay. It was said that, on the contrary, the learned Tribunal erroneously referred to the pay scales of Delhi Police personnel and even disregarded the fact that the Workmen were getting paid as per the pay scales fixed by the Central Pay Commission, from time to time.

8. The second contention of learned counsel for the Petitioner was that the reference was incompetent because it should have been made by the Central Government, which was the appropriate government under the Industrial Disputes Act, 1947 (the Act), and not the Delhi Administration.

9. In support of his first submission, learned counsel for the Petitioner relied upon Ratnakar Vishwanath Joshi vs. Life Insurance Corporation, 1975 I LLJ 501 to contend that the regulations relating to the pay scales of the Workmen were not in the nature of a contract of service but had the force of law. Therefore, they would not fall within the jurisdiction of the learned Tribunal and would be excluded from it and so the pay scales fixed by regulations could not be varied by it.

10. Similarly, reference was made to Mangalore University Non-teaching Employees Association vs. Mangalore University, 1988 I LLN 771 wherein it was observed that while ''...the Industrial Tribunal has wide powers in matters relating to conditions of service of workmen, in that, it can create new conditions of service or alter existing conditions of service, it can do so, only if the matter is not regulated by law. It has no jurisdiction to deal with matters covered by law, and to make an award directing an employer to regulate the conditions of service otherwise than in accordance with statutory provision.''

11. Learned counsel submitted that this principle applied even to a statutory scheme, and for this purpose reliance was placed on Madras Harbour Workers' Union vs. Industrial Tribunal, 43 FJR 478. It was held in that case that the scheme framed under Section 4(1) of the Dock Workers (Regulation of Employment) Act, 1948 had all the characteristics of a subordinate legislation and it would be arrogating too much power if the Tribunal were to make an award altering a statutory provision.

12. Finally, learned counsel referred to N.S. Giri vs. The Corporation of City of Mangalore, the entire case law was reviewed by the Supreme Court. It was held that if an award is contrary to the statutory rules, then it could not be upheld and given effect to by issuing a writ for its implementation.

13. It was also contended by learned counsel that fixation of pay scales is a specialized task, best left to an expert body like the Pay Commission. Reference in this context was made to DTC Workers' Union vs. Delhi Transport Corporation, 1991 I LLJ 607 and State of West Bengal vs. The West Bengal State Audio Visual Technicians Association, 1998 II CLR 896.

14. Relying upon State of Uttar Pradesh vs. Dr. Anupam Gupta, it was submitted that a pure question of law arising from the record could be gone into by the Court. It was contended that if a question of law was not dependant upon the determination of any question of fact, it could be raised at any time and a High Court, particularly, has ample discretion in this regard. For this submission, reference was made to Chittoori Subbanna vs. Kudappa Subbanna, .

15. On the other hand, it was submitted on behalf of the Workmen, relying upon United Commercial Bank vs. Secretary, U.P. Bank Employees Union, that a question of jurisdiction is not a pure question of law, it is mingled with facts and it cannot be raised for the first time in appeal. It was then submitted, relying upon National High School vs. Education Tribunal, that if a question of jurisdiction is not raised in the first instance, the objector is subsequently estopped from raising that issue. Learned counsel also relied upon Remington Rand of India vs. Thiru R. Jambulingam, and The Associated Cement Co. Ltd. vs. P.D. Vyas, to further substantiate his point of view. It was also contended that if there were acquiescence in jurisdiction, it would disentitle a petitioner to any relief in the hands of a Court. Reliance in this context was placed on Pannalal Binjraj vs. Union of India, .

16. It was further submitted that the scope of judicial review is very limited in such cases. The High Court can quash an award of the Industrial Tribunal when it has committed an error of law apparent on the face of the record or when the findings of fact are perverse. Reference was made to J.D. Jain vs. Management of State Bank of India, . It was submitted, relying upon Indian Overseas Bank vs. I.O.B. Staff Canteen Workers' Union, that the writ court does not exercise appellate jurisdiction over findings of fact arrived at by the Industrial Tribunal. Findings of fact should be considered as final and should not be disturbed ''for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings, at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken.''

17. Both in its written statement filed before the learned Tribunal and in the writ petition filed in this court, the Petitioner has made no reference to any power or obligation conferred by any of the statutes or regulations mentioned above. The learned Tribunal was not called upon to frame any issue with reference to any of the statutes or regulations mentioned above. The Petitioner has not made any application for amendment of the writ petition to incorporate any submission based on the statutes or regulations mentioned above, even though the writ petition has been pending in this court for about 20 years. Under the circumstances, it is not possible to permit the Petitioner to raise this issue for the first time during the course of oral argument.

18. With respect, it is an oversimplification on the part of learned counsel for the Petitioner to contend that the issue sought to be raised by him is a jurisdictional issue and a pure question of law and, therefore, can be raised at any point of time.

This is not so. If the contention of learned counsel for the Petitioner is accepted, then it will mean on merits (as pointed out by learned counsel for the Workmen) that the salaries and pay scales of employees of the Petitioner have not undergone any change between 1950 and 1992 (when the 1992 Regulations were enacted) and between 1992 and today, because no amendments to these Regulations have been pointed out. The Petitioner has not set up such a case. This will also mean that changes in pay scales that have taken place during this period (and there is no dispute that such changes have taken place about 5 or 6 times) have all been contrary to the statute and the regulations framed there under. The Petitioner has not set up even this case. Consequently, the argument of learned counsel for the Petitioner will not only require a detailed examination into facts, the basis on which such changes have taken place but also the repercussions thereof. None of this is possible without requisite pleadings. Learned counsel for the Petitioner has not cited any decision on the basis of which it can be suggested that even in the absence of any pleading, such an issue could be agitated by him. Under these circumstances, learned counsel for the Workmen is right in vehemently opposing the entertaining of such a contention, and his objection must be sustained.

19. As far as the other submissions are concerned, they are relatable to the principal issue, if not the only issue that arises in this case, namely, whether the Workmen are entitled to the pay scales given to their counterparts in the Delhi Police. This is really the heart of the matter and has been noted as such by the learned Tribunal to be the only question arising in this case.

20. At the relevant time, pay scales in the Delhi Police and the Petitioner were as per the chart given below:

  Designation  Delhi Police scales  Petitioner's scales   Petitioner's designation 
D.S.P.        650 - 1200          650 - 1200              D.S.O. 
Inspector     550 - 900           550 - 900               Security Officer 
S.I.          425 - 700           330 - 560               Asstt. Security Officer 
A.S.I.        330 - 480             xxx                   xxx 
Head          260 - 350           200 - 240               Security Havaldar 
Constable
Constable     225 - 308           200 - 240               Security Guard 
(Matric)
Constable     210 - 270             xxx                   xxx 
(non-matric) 
 

21. It will be seen from the above, that it is only at the highest levels, that the posts in the two organizations carry the same pay scale. There is no ostensible reason for a pay disparity at the lower levels and this is really where lies the rub in so far as the Workmen are concerned. 
 

22. Learned counsel for the Petitioner contended that the duties of those in the police force are much more onerous than those performed by the Workmen. Assuming this to be so, this degree of arduousness and difficulty must travel down the hierarchy. It cannot be that the work of the police force in the higher echelons is comparable to the work performed by the Workmen in their higher echelons, and the disparity comes about only at the lower levels. There must be some uniformity, which is lacking, and which is not explained by the Petitioner anywhere. It is not possible to accept the ipse dixit of learned counsel for the Petitioner that there is a difference in duties and responsibilities between the police and the Workmen and this difference is limited to some categories of employees only. The Petitioner had the opportunity to lead evidence in support of its contention in this regard, but failed to do so. An off the cuff assertion is not acceptable.

23. Learned counsel for the Petitioner contended that the financial resources and paying capacity of the Petitioner also have to be taken into consideration while passing an Award and the learned Tribunal has not done this. The rationale for disagreeing with this submission is the same as it is for disagreeing with the submission relating to the quality of work. In the absence of any facts, figures or statistics, it cannot be said that the Petitioner has the financial resources to pay to officers at the higher levels, a salary equivalent to that given to similarly placed officers of the Delhi Police, but the financial resources are inadequate when it comes to paying a comparable salary to officers at a lower level. It is possible to appreciate this argument only if there is any empirical material to back it up, but unfortunately the Petitioner has not placed any such material on record.

24. It has been pointed out by learned counsel for the Workmen, and this has not been disputed by learned counsel for the Petitioner, that the wages of officers in the Delhi Police have been upwardly revised several times over the last couple of decades and the wages of the Workmen have also been similarly upwardly revised - but the essential disparity brought about in the higher echelons has continued. To my mind, this itself demonstrates the hollowness of the contention urged on behalf of the Petitioner. If there were any financial crunch or if the Petitioner were running in losses, as alleged, the salaries of DSOs and SOs would not have been upwardly revised to keep pace with the wages of their counterparts in the Delhi Police.

25. It was finally contended by learned counsel for the Petitioner that the learned Tribunal has failed to apply the well-accepted principle of industry cum region while determining the scales of pay due to the Workmen. Reference in this regard was made to Officers and Supervisors of IDPL vs. Chairman and M.D. IDPL, 2003 III CLR 161 which cites a passage from the Constitution Bench decision in Express Newspapers (Private) Ltd. vs. Union of India, .

26. The principle of region cum industry is no doubt well settled. However, it need be applied only if there is a necessity of searching for a comparison from a fair cross-section of the industry for arriving at a just or reasonable wage structure. In the present case, there is no such need because material is intrinsically available from within the organization itself to provide adequate guidance. If the management of one organization compares the wages of its employees to the wages of employees of any other organization, then the comparison must hold good for all categories of employees of the first organization. This is precisely the situation in the present case. It cannot reasonably be said that though the comparison with Delhi Police is valid for a few categories of employees but for others, the principle of region cum industry should be applied. If the region cum industry principle is to apply, then it must be so for all categories of employees and not just a select few.

27. Quite apart from the above, learned counsel for the Workmen is right when he says that this Court should interfere with a decision of a Tribunal under Article 226 of the Constitution only if there is substantial injustice. In Sangram Singh vs. Election Tribunal, the Supreme Court in paragraph 14 of the Report said:

''The High Courts do not, and should not, act as Courts of appeal under Art.226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be.''

28. To the same effect are the observations of the Supreme Court in A.M. Allison vs. B.L. Sen, wherein it was said:

''...Proceedings by way of certiorari are ''not of course''. (Vide Halsbury's 'Laws of England', Hailsham Edition, Vol. 9, paras 1480 and 1481, pp. 877-878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which are directed against the orders of the High Court in applications under Art. 226, we could refuse to interfere unless we are satisfied that the justice of the case requires it. But we are not so satisfied. Ware of opinion that, having regard to the merits which have been concurrently found in favor of the respondents both by the Deputy Commissioner, Sibsagar, and the High Court, we should decline to interfere.'' (Para 17)

29. Under the circumstances, the Petitioner's challenge to the Award on its merits must also be repelled.

30. The final submission of learned counsel for the Petitioner was that the reference could not have been made by the Secretary (Labour) of the Delhi Administration because the appropriate Government under the Act is the Central Government and not the Delhi Administration.

31. This question was raised by the Petitioner as a preliminary objection in its written statement filed before the learned Tribunal. On the basis of the objection raised, the following issue was framed:-

1. Whether the reference is not maintainable in view of the objections raised in Para 1 of the W.S. under the heading 'Preliminary Objections'?

32. When the reference was being adjudicated upon, learned counsel appearing for the Petitioner made a statement on 17th July, 1985 that she did not press this issue. Consequently, there was no adjudication on this issue.

33. Learned counsel for the Petitioner contended that the issue raises a question of law and even though there is a concession made in this regard by learned counsel appearing before the Industrial Tribunal, it could be agitated in this Court.

34. Even though I think it is a little unfair on the part of the Petitioner to agitate this issue after a gap of almost 20 years, I heard learned counsel for the Petitioner in this regard and I find that there is absolutely no merit in the contention raised.

35. The order of reference itself mentions that the reference has been made in exercise of powers conferred by Section 10(1)(d) and 12(5) of the Act read with the Government of India, Ministry of Labour Notification dated 14th April, 1975. The notification dated 14th April, 1975 has not been placed on record by learned counsel for the Petitioner. But, be that as it may, the validity of this notification came up for consideration before the Full Bench of this Court in Indian Tourism Development Corporation vs. Delhi Administration and Others, 2nd (1982) I Delhi 535. It appears from this decision that the notification was issued in exercise of powers conferred by Section 39 of the Act, which reads as follows:-

''39. Delegation of powers.- The appropriate Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act or rules made there under shall, in relation to such matters and subject to such conditions, if an, as may be specified in the direction, by exercisable also,-

(a) where the appropriate Government is the Central Government, by such officer or authority subordinate to the Central Government or by the State Government, or by such officer or authority subordinate to the State Government, as may be specified in the notification; and

(b) where the appropriate Government is a State Government, by such officer or authority subordinate to the State Government as may be specified in the notification.''

36. It was sought to be contended, further, by learned counsel for the Petitioner that the view taken by the Full Bench of this Court is not in accord with the view expressed by the Supreme Court in Goa Sampling Employees' Association vs. General Superintendence Co. of India P. Ltd. and Others, 1985 Lab.I.C. 666.

37. I am afraid that learned counsel for the Petitioner is going well beyond the issue framed before the learned Tribunal. Moreover, I take it that the learned counsel appearing before the learned Tribunal was well aware of the notification issued by the Central Government and, therefore, did not press the issue. Learned counsel appearing in this Court accepts that a notification was issued conferring powers upon the Secretary (Labour) to make a reference as has been done in this case; learned counsel also admits that this notification has been specifically upheld by a Full Bench of this Court, yet he submits that by implication the Full Bench decision must be deemed to be overruled by a subsequent decision of the Supreme Court. I am afraid it is not possible to entertain such a circumlocutory argument and it must, therefore, be rejected because it will amount to my implicitly reconsidering a Full Bench decision of this Court. Learned counsel for the Petitioner is inviting me to do indirectly what I cannot do directly.

38. Finally, learned counsel for the Workmen has pointed out a rather disturbing feature of this case which is that a meeting of the concerned Board of the Petitioner was held on 10th April, 2001 and one of the issues that had come up for consideration in its meeting was the implementation of the impugned Award. The Board discussed the matter at length and it was decided that since the Petitioner had already deposited 50% of the awarded amount in this Court it would be in the interest of the Petitioner to accept the Award of the learned Tribunal in respect of the pay scales only. A unanimous decision was taken by the Board of the Petitioner that the impugned Award should be accepted (contrary to what has been contended by learned counsel for the Petitioner) and that this would, of course, be subject to approval by the Delhi Administration. These minutes were approved by the Chairman of the Petitioner. The Delhi Government rejected the view of the Petitioner but that is a different matter altogether. However, the fact remains that while the Petitioner has, on the one hand, accepted that the impugned Award should be implemented, it has instructed its learned counsel to the contrary. On the other hand, the Delhi Administration did not make any submission in this Court, one way or the other, but tacitly agreed that the Award should be set aside. This was also the view expressed by the Delhi Administration in its affidavit filed in this Court on 21st April, 2004

39. An issue such as the present should have really been sorted out by the parties after due discussions and negotiations but I think the somewhat rigid stand taken by the Petitioner as well as the Delhi Administration has come in the way of an amicable settlement. Therefore, while dismissing the writ petition, I would award costs of Rs.25,000/- in favor of the Workmen to take care of their litigation expenses over the last so many years.