Municipal Corporation Of Delhi vs Sonu
2006 Latest Caselaw 329 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 17.03.2005.

2. Heard learned counsels for the parties and perused the record.

3. It is alleged in paragraph 1 of the writ petition that the petitioner was engaged by the respondent (appellant in this appeal) as a 'Sweeper' in the MCD Primary School, Karkardooma, Shahdara South, vide appointment letter dated 23.8.1988, copy of which is Annexure A to the writ petition.

4. In paragraph 2 of the writ petition it is alleged that the school runs in two shifts. In the morning from 7 AM to 12:30 PM runs the Girls primary school and in the evening from 1 PM to 6 PM runs Boys primary school. The petitioner was employed in the girls primary school, where he served from 23.8.1988 to 25.6.97 continuously. On 26.6.1997 he was shifted to the boys primary school, where he is working presently.

5. It is alleged in paragraph 3 of the writ petition that the respondent-school (appellant herein) has treated the petitioner as part time worker and vide their Office order dated 29.4.1994 they have been paying him a fixed amount of Rs. 560/- per month treating him as part time employee with duty of 5 hours per day. A true copy of the said office order is Annexure B to the writ petition.

6. It is alleged in paragraph 4 of the writ petition that the prescribed minimum pay scale for Group-D employees of MCD as recommended by the 4th Pay Commission and accepted by the MCD is Rs. 750-940 with effect from 1.1.1986. Extract from the Gazette of India, in this connection is Annexure C to the writ petition.

7. In paragraph 6 of the writ petition it is alleged that the petitioner from the date of his appointment has been entrusted with the work of sweeping, cleaning and dusting like regular sweepers working in the same department and working hours. However, for the last 9 years he has neither been regularized nor paid the minimum of the pay scale of Group-D, which is discriminatory and arbitrary and hence violative of Articles 14 and 16 of the Constitution. The petitioner relies on the judgment of the Supreme Court in Air India Statutory Corporation v. United Labour Union 1997 (4) SC 325 and JT 757 (SC). The petitioner submitted a representation to the respondent in this connection but to no avail.

8. In the counter affidavit filed in the writ petition by the Municipal Corporation of Delhi (MCD), it is stated that the petitioner was appointed as 'part time sweeper' on the death of his mother, who was also a part time sweeper. It is alleged that part time sweepers are regularized in a phased manner as per seniority and vacancy, and till date part time sweepers appointed up to 10.9.1982 have been regularized, whereas the petitioner was appointed on 23.8.88. Hence no cause of action arose in his favor. A copy of decision dated 15.3.1997 in this connection is Annexure R1.

9. It is alleged that the petitioner cannot compare his case with that of a daily wager or a casual employee of MCD (who are full time employees) as he was appointed only as a part time sweeper. He was appointed as a Safai karamchari on part time basis for 2-3 hours and accordingly was paid Rs. 560/- per month as per the Office Order dated 29.4.1994. The writ petitioner was temporarily appointed on part time basis as a part time sweeper on compassionate ground on the death of his mother Smt. Munni Devi, who was also a part time sweeper.

10. In paragraph 3 of the counter affidavit, it is stated that initially part time Safai Karamcharis were made to work only for two hours, but now the duty hours have been extended to four hours as per the Circular dated 24.4.94 and now part time Safai Karamcharis are working for four hours.

11. In paragraph 4 of the counter affidavit, it is stated that the petitioner being a part time worker is not entitled to the pay scale of Group 'D' employees, which is not applicable to the part time workers, but to full time workers.

12. In paragraph 5 of the counter affidavit it is denied that the Office Memorandum of the Government of India requires the casual employees to be regularized after one year of their employment. At any event, the petitioner is neither a daily wager nor causal worker but he is only a part time worker. It is denied that the petitioner is doing the same work as that of a regular sweeper. The working hours of regular sweepers are more than minimum 6 hours a day.

13. In the reply of the writ petitioner to the application dated 16.4.2005 filed by the respondent, the petitioner has alleged that the respondent has to pay minimum wages under the Minimum Wages Act for unskilled workers to which category the petitioner belongs.

14. The petitioner has referred to various notifications issued under the Minimum Wages Act, in support of his claim.

15. In our opinion, if the writ petitioner (respondent in this appeal) claims minimum wages as per the various notifications under the Minimum Wages Act, he has an alternative remedy to apply under Section 20 of the Minimum Wages Act, which states as under:-

'Claims' (1) The appropriate Government may, by notification in the Official Gazette, appoint any Commissioner for Workmen's Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub-section (1) of section 13 or of wages at the overtime rate under Section 141, to employees employed or paid in that area.

(2) Where an employee has any claim of the nature referred to in sub-section (1), the employee himself, or any legal practitioner or any official of a registered trade union authorized in writing to act on his behalf, or any Inspector, or any person acting with the permission of the Authority appointed under sub-section (1), may apply to such Authority for a direction under sub-section (3):

Provided that every such application shall be presented within six months from the date on which the minimum wages or other amount became payable:

Provided further that any application may admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period.

16. Thus, for any claim under the Minimum Wages Act, the petitioner has an alternative remedy of approaching the authority constituted under Section 20 of the Act, and he cannot directly file a writ petition.

17. In this connection, we may refer the decision of the Supreme Court in U.P. State Bridge Corporation Ltd. and ors. v. U. P. Rajya Setu Nigam S. Karamchari Sangh , in which it was observed:-

We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent Union at all. The dispute was an industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well as U.P. IDA, 1947. The rights and obligations sought to be enforced by the respondent Union in the writ petition are those created by the Industrial Disputes Act. In Premier Automobile Ltd. v. Kamlekar Shantaram Wadke , it was held that when the dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the claimant is to get adjudication under the Act.

18. The same view was also expressed in Rajasthan State Road Transport Corporation and Anr. etc. etc. v. Krishna Kant etc. etc. AIR 1995 SC 715.

19. As regards any claim for wages made by the writ petitioner, dehors the Minimum Wages Act, in our opinion the petitioner has an alternative remedy of raising an industrial dispute in this connection under the Industrial Disputes Act. It is well settled that a school is also an industry under the Industrial Disputes Act as held by the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. . This has also been held by the Division Bench of this Court in Daulat Ram and Ors. v. UOI and Ors. 127 (2006) DLT 99.

20. There were several controversies in this case as to whether the petitioner was a part time employee or full time employee, how many hours he worked and what is the nature of his work, etc. In view of these factual controversies it is therefore, appropriate that the petitioner avails of his alternative remedy in this connection and not directly approach this Court.

21. The learned counsel for the respondent (writ petitioner) submitted that a writ petition cannot be dismissed on the ground of alternative remedy after it has been entertained. We are of the opinion that there is no such legal principle. In , a writ petition had been allowed by the High Court, but the Supreme Court dismissed the writ petition on the ground of an alternative remedy. Hence there is no such absolute principle that merely because the writ petition has been entertained by the High Court, it can not be dismissed subsequently on the ground of alternative remedy.

22. In our opinion, if the petitioner is claiming under the Minimum Wages Act, then he has an alternative remedy of approaching the authority under Section 20 of the Minimum Wages Act. On the other hand, if he is making a claim dehors the Minimum Wages Act, then he has an alternative remedy of raising an industrial dispute under the Industrial Disputes Act. In this connection, it may be noted that Item-1 of the third Schedule of the Industrial Disputes Act, clearly states that 'wages' is a matter which can be adjudicated by the Industrial Tribunal. Hence an alternative remedy is available to the writ petitioner under the Industrial Disputes Act, since a school has been held to be an industry under the Act by the Supreme Court.

23. For the reasons given above, this Appeal is allowed. The impugned judgment of the learned Single Judge is set aside and the writ petition is dismissed on the ground of alternative remedy.