Govt. Of Nct Of Delhi vs Its Workmen And Anr.
2007 Latest Caselaw 360 Del

JUDGMENT

Hima Kohli, J.

1. This petition is filed against an award of the IndustrialTribunal dated 11th March, 2002, by which the petitioner management herein was directed to designate the respondent workmen as "Mali" from the date of theirregularization and extend to them the facilities of uniform, item of liveries,stitching charges, washing allowance and private conveyance/ cycle allowance asper the rules.

2. Facts relevant for the purpose of disposing of this writpetition, as gleaned from the pleadings are as follows. The workmen underreference were engaged as casual labourers in the Horticulture Department of theGovernment of NCT of Delhi. Seeking regularization, certain groups of suchworkmen moved the Supreme Court in 1983. In the said case, entitled "Sh. Naiderand Another v. Delhi Administration and Ors.", the Supreme Court vide its orderdated 29th September, 1988 directed the Delhi Administration to prepare a schemeto absorb the casual labourers, who had worked for one year or more in the SoilConservation Department and other departments of Government of NCT of Delhi andto absorb all such casual labourers as regular employees within six months from the date of the order. It was further directed that until they are so absorbed,the Delhi administration shall pay to each of the casual labourers working inthe Soil Conservation Department and other departments of Government of NCT ofDelhi at the rate equivalent to the minimum salary paid to regular employees incomparable posts in the said departments, w.e.f. 1st October, 1998. Thereafter,certain clarificatory orders dated 6th March and 12th March, 1990 were passed bythe Supreme Court in the aforementioned matters, as to the expression "salary orwages" to be paid to the petitioner/workmen and it was clarified by Governmentof NCT of Delhi that minimum salary plus allowances which came to Rs.1,100/-,had to be paid to such employees.

3. In compliance with the above-mentioned orders of the SupremeCourt, the petitioner created 999 new posts of "casual labourers" in the scaleof Rs.750-950 on 21st March, 1991 and the workmen were accordingly regularized.Thereafter, on 23rd of March, 1994, further 120 posts were created and termed as"diminishing cadre" to accommodate those workmen who were over-aged and couldnot be regularized as "casual labourers".

4. The basic grievance of the workmen against creation of the saidpost of "casual labourers" is that they should have been regularized on theposts of "malis" which was the lowest comparable post to that of the casualworkmen and as such the pay scale of the new post of "casual labourers" wasequivalent to that of the "malis".

5. For redressal of the said grievance, about 350 workmen movedthe Central Administrative Tribunal (CAT) in the years 1997, 1998 and 1999 withthe prayer that they be designated as "Mali" and be given allowances as perrules. While disposing of two of these petitions, vide orders dated 28thJanuary,1999 and 12th August, 1999, the Tribunal held that since the workmen hadbeen regularized, their service record was being maintained, and they wereeligible to all admissible allowances including medical facilities andpromotional avenues, no further directions were required to be passed. Inanother order dated 17th August, 2001, while disposing of another petition, theTribunal observed that the respondents therein, petitioner herein has created aclass within the class of Mali, which is not legally permissible. It was statedby the Tribunal that while Malis were getting higher benefits, the applicantworkmen, in spite of performing the same duties, were not getting the samebenefits. However, the Tribunal held that it had no power to re-designate orcreate posts, and issued a direction to the Government to consider the claim of the applicant workmen for according them benefits as admissible to regular Maliswith effect from the date of their regularization.

6. Meanwhile in the year 1997, one Sh. Jai Pal, casual labourer, through the Delhi Pashasan Vikas Vibhag Industrial Employees Union, raised an industrial dispute before the Industrial Tribunal seeking redesignation of thepost of "causal labourers" to that of "Malis" with all the allowances attached to the said post, for himself and for other members of the union.

7. By the impugned award, the Industrial Tribunal, held that the onus to prove that the Horticulture Departments is not an industry, lay on the management, and since it had failed to lead its evidence in this regard, and adverse presumption was drawn against the management and the issue was and were in favor of the workmen. It was further held that workmen were entitled to be designated as Mali from the respective dates of their regularization in service and that they could not be denied the facilities of uniform, items of liveries, stitching charges, washing allowance etc. However, it was also held that the workmen were not entitled to be regularized from the date of their initial appointment and that the regularization was proper and could not be disturbed.

8. It is the aforementioned award of the Industrial Tribunal that the petitioner has assailed by way of the present petition. During the course ofarguments, learned Counsel for the petitioner submitted that there did not existany Recruitment Rules for the post of "casual labourers" and as "labourers" wasnot a designated post, there was no comparable post existing with the petitioner, hence the said post was created only to regularize the workmen, asper the directions of the Supreme Court. On the other hand, recruitment to thepost of Mali is based on the Recruitment Rules for the said post, and since therespondent workmen and other comparable workmen were not appointed in accordancewith the said rules, they could not be regularized at the post of Mali. Insupport of this contention, reliance was placed on the case of Secretary ofState, Karnataka v. Uma Devi reported as , wherein the Apex Courtdealt with a number of issues concerning service and labour and held that once aperson accepts an engagement either temporary or casual in nature, he cannot beallowed to be regularized or continue in such post by bypassing theconstitutional scheme of appointment as per the Recruitment Rules. Counsel forthe petitioner has also relied on a judgment rendered by a Division Bench ofthis Court dated 22nd February, 2005, in LPA No.2067/2005 entitled "Govt. of NCTof Delhi v. Workmen, by Delhi Prashasan, Vikas Vibhag Industrial EmployeesUnion", wherein after considering the earlier judgment of the Supreme Court inNaider's case (supra), it was held that the directive of the Supreme Court willprevail over the award of the Tribunal. Reliance has also been placed on a judgment of another Division Bench dated 21st September, 2005 in connectedmatters, lead matter being LPA No.925/2003 entitled "M/s Hauz Rani Seed Farm v. Smt. Kashmiri and Ors." wherein, after referring to the Naider's case (supra),it was held that the decision rendered by the Supreme Court in that case andother factors such as the fact that the respondent workmen had accepted theother benefits without protest, are the guiding principles in deciding whetherorder for payment of back wages could be issued by the Tribunal.

9. Learned counsel for the petitioner management further submittedthat there are only 50 posts of Malis sanctioned in various departments of theGovernment of NCT of Delhi and the casual labourers who were regularized as perthe directions of the Supreme Court were all working under the supervision ofMalis and performed the duties of digging pits, trenches, preparing nurserybeds, planting and maintaining trees, collecting seeds and loading and uploadingetc. It was also stated that the respondent workmen and other similarly placed workmen continued to perform the same work even after their regularization tothe post of "casual labourers" in 2001.

10. Learned counsel for the petitioner management further stated that the post of "Mali" is not equivalent to the post of "causal labourers". Itwas submitted that while "Mali" is a supervisory post, the casual labourers workunder the supervision of Malis. Further, learned Counsel for the petitioner management also stated that there was nothing placed by the respondent workmenon the record to show that the casual labourers were working as " Malis" andthat the onus to prove that the respondent workmen performed work of the same nature as performed by the Malis was on the respondent workmen, which they failed to discharge. Support was sought to be drawn from the case of Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. reported as . It was submitted that no documentary evidence was produced by the respondent workmen, before the Industrial Tribunal to show as to what was the nature of work being performed by the Malis or to show that the respondent workmen were performing the same work as the Malis, or even to prove thatworkmen performing similar work like that of the respondents, were designated asMalis in CPWD, DDA, MCD or the NDMC. It was submitted that in absence of anysuch evidence being led by the respondent workmen, the Tribunal"s presumptionthat individuals performing similar work like that of the respondents, weredesignated as Malis in CPWD, DDA, MCD or the NDMC, is perverse and liable to berejected.

11. Learned counsel for the petitioner also sought to assail thesaid award of the Tribunal on the ground that it wrongly arrived at a conclusionthat the Horticulture Department is an industry. Reliance was placed on thejudgments of the Supreme court in this regard, in the cases of Chief Conservatorof Forests and Anr. v. Jagannath Maruti Kondhare etc. reported and Physical Research Laboratory v. K.G. Sharma reported as . It was also stated that the creation as well as designation of a post isnot within the domain of the Industrial Tribunal. Learned counsel for the petitioner also contended that equal pay for equal work is not a fundamentalright vested in any employee and that fixation of pay and parity in duties andresponsibilities is only for the executive to decide, and not for the tribunalsand the court to decide. Reliance in this regard, was placed on the followingjudgments of the Supreme court:

(i) State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association .

(ii) U.P. State Electricity Board and Anr. v. Hydro-Electric Employees Unionand Anr. .

12. On the other hand, learned Counsel for the respondent workmendrew my attention to the parameters laid down by the Supreme Court forintervention in industrial adjudication. In this respect he relied on thefollowing judgments:

(i) Sadhu Ram v. Delhi Transport Corporation AIR 1984 SC 1967

(ii) Harbans Lal v. Jag Mohan .

(iii) Calcutta Port Shramik Union v. Calcutta River Transport Association and Ors. 1988 (Sup.) SCC 768.

(iv) Sudhoo v. Haji Lal Mohd. Biri Works and Ors. 1990 Lab. I.C. 1538.

13. It was stated that it is only the perversity in an award thatcan be examined under Article 226 of the Constitution of India.

14. Learned counsel for the respondent workmen further stated thatHorticulture Department is an industry and has relied on the following judgmentsin support of his contention:

(i) Chief Conservator of Forest and Anr v. Jaggarnath Kondhare .

(ii) State of U.P. v. Jai Vir Singh .

(iii) Management of Horticulture Department of Delhi Administration v. TrilokChand and Anr. .

15. It was stated that whether the petitioner was an "industry" ornot is a mixed question of fact and law and that no evidence whatsoever had beenled by the petitioner on the said issue.

16. Learned counsel for the respondent workmen further submittedthat the Industrial Adjudicator is not fettered by any limitations to alter,create or revise the contract of employment or conditions of service. Reliancewas placed on a number of judgments of the Supreme Court including thefollowing:

(i) Western India Automobile Association v. Industrial Tribunal, Bombay and Ors. (1949) FCR 321.

(ii) Bharat Bank Ltd., Delhi v. Employees of the Bharat bank Ltd., Delhi 1950 SCR 459.

(iii) Bidi Leaves and Tobacco Merchants Association v. The State of Bombay (1961) 1 SCR 381.

17. Reliance was also placed on judgments of the Supreme Court toindicate the various conditions of service, which have been interfered with bythe Courts. Such conditions of service include bonus, leave encashment, holidaysand hours of work. Learned counsel for the respondent workmen also claimed thata writ court or a tribunal can direct payment or increase in payment ofallowances like car allowance, uniform allowance etc. and can apply the"Industry-cum-Region Principle" in deciding whether an allowance or a perquisitegiven to similarly situated employees is to be given to the workmen.

18. Finally, counsel for the respondent workmen argued that the petitioner did not create any comparable cadre, and instead, created new posts,which was contrary to the directions of the Supreme Court and that the petitioner did not place any evidence before the Industrial Tribunal as to whatwas the nature of work, over and above the work being done by the respondentworkmen, which qualified them to be designated as Malis. It was submitted thatin any case, the award does not deserve to be interfered with as it isbeneficial in nature and has no monetary fall out, except for the perks to whichthe respondent workmen have been held entitled.

19. I have heard the learned Counsel for the parties, perused therecords as also the judgments cited by the parties and have given my thoughtfulconsideration to the submissions made by the respective parties.

20. A perusal of the award given by the Industrial Tribunal showsthat the reference has been answered in favor of the respondent workmen mainlyon the premise that the petitioner management did not dispute that persons likethe respondent workmen employed in CPWD, MCD, DDA and NDMC are designated asMalis and therefore, it was held that the contention of the petitioner to theeffect that as the respondent workmen were appointed as casual labourers,pursuant to the directions of the Supreme Court, and thus they could not bedesignated as Malis, is baseless and without justification. Relying on theaforesaid logic, the respondent workmen were held entitled to be designated asMalis from their respective dates of regularisation in the service, and it wasfurther held that they could not be denied the facilities of uniform, item ofliveries, stitching charges, washing allowance which is provided to theircounterparts in CPWD, MCD, DDA and NDMC as also conveyance allowances and cycleallowances as per the rules.

21. The aforesaid conclusion appears to be fallacious, for thereason that the Industrial Adjudicator lost sight of the fact that it waspursuant to the directions of the Supreme Court in Naider's case (supra) thatthe petitioner formulated a scheme and created new posts of "casual labourers",to which the respondent workmen were appointed and regularised. Once therespondent workmen accepted the terms and conditions of appointment and did notraise any dispute with regard to their appointment in the newly created post of"casual labourers" at the relevant time, they cannot claim entitlement to beingdesignated as `Malis' and as a consequence thereto, claim the benefit of variousfacilities and perks to which Malis are entitled in terms of the relevant rules.The respondent workmen are bound by the terms and conditions of theirappointment which was accepted by them with open eyes, without any reservationand without any demur. The claim raised by the respondent workmen before theIndustrial Tribunal, after being regularised to the posts of casual labourers istherefore not justified. However, fact remains that the claim was made by therespondent workmen, the same was entertained and a reference was made by theappropriate Government to the Industrial Tribunal, which was answered in favorof the respondent workmen.

22. Be that as it may, after availing of the scheme formulatedunder the orders of the Supreme Court and being regularised to the posts ofcasual labourers between the years 1991-94, the respondent workmen invoked theprovisions of the Industrial Disputes Act, after three years, somewhere in theyear 1997, seeking redesignation of the post of "casual labourers" to that of"Malis" with all the allowances attached to the said posts. Assuming that therespondent/ workmen were at all entitled to raise such a claim, they ought tohave approached the Supreme Court for necessary clarifications of its earlierorder dated 29th September, 1988. In fact, as noted above, pursuant to the orderdated 29th September, 1988 certain workmen had approached the Supreme Court forobtaining clarificatory orders with regard to the expression "salary or wages"to be paid to the workmen and necessary clarifications were given by the SupremeCourt vide orders dated 6th and 12th March, 1990. In case the presentrespondent workmen were aggrieved by the manner in which the petitionerinterpreted the order of the Supreme Court and formulated a scheme to absorbthem by while creating new posts of "casual labourers" instead of creating acomparable cadre, nothing prevented them from once again knocking at the doorsof the Supreme Court. This factor has been completely overlooked in theimpugned award wherein it has been held that the defense taken by the petitionerto the effect that the respondent workmen cannot be designated as Malis becausetheir posts were created on the orders of the Supreme Court, is only an excuseand is without any justification. I am fortified in taking this view in thelight of the judgments rendered by two Division Benches of this Court in LPANos. 2067/2005 and 925/2003, referred to above, wherein it was held that thejudgment of the Supreme Court in Naider's case ought to have been the guidingprinciple in deciding the case of the respondent/ workmen therein who hadaccepted the benefit of the scheme offered by the Delhi Government pursuant todirections of the Supreme Court.

23. There is force in the contention of the petitioner that theonus to establish that the respondent workmen were performing the job of Malislay with the respondent workmen, claimants before the Industrial Tribunal andnot the petitioner. The record reflects that no document was placed on therecords to show the nature of duties being performed in CPWD, MCD, DDA and NDMCby Malis so as to compare the nature of work being done by the respondentworkmen in Delhi Administration and, therefore, the conclusion arrived at in theimpugned award to the effect that the petitioner has not disputed that suchpersons who were doing similar work in CPWD, MCD, DDA and NDMC were designatedas Malis, is not substantiated from an appreciation of the records. Thereare no documents placed on the record by the respondent workmen with regard tothe nature of work being performed by Malis in the aforesaid Departments vis-a-vis the work being performed by the respondent workmen, for the respondentworkmen to be held entitled to be designated as Malis. In fact, there is nodiscussion in the award on this aspect before arriving at the said conclusion.

24. It is a settled position that though the provisions of IndianEvidence Act, 1872 per se are not applicable to an industrial adjudication, butits procedure is guided by the general principles of the law of evidence that hewho asserts must prove.

25. The law relating to onus of proof in the field of labour lawhas been dealt with by the Supreme Court in various cases. In Range Forest Officer v. S.T. Hadimani reported as , it was held as follows:

2 . In the instant case, dispute was referred to the Labour Court that therespondent had worked for 240 days and his service had been terminated withoutpaying him any retrenchment compensation. The appellant herein did not acceptthis and contended that the respondent had not worked for 240 days. The Tribunalvide its award dated 10-8-1998 came to the conclusion that the service had beenterminated without giving retrenchment compensation. In arriving at theconclusion that the respondent had worked for 240 days, the Tribunal stated thatthe burden was on the management to show that there was justification intermination of the service and that the affidavit of the workman was sufficientto prove that he had worked for 240 days in a year.

3 . For the view we are taking, it is not necessary to go into the question asto whether the appellant is an "industry" or not, though reliance is placed onthe decision of this Court in State of Gujarat v. Pratamsingh Narsinh Parmar (2001) 9 SCC 113. In our opinion the Tribunal was not right in placing the onuson the management without first determining on the basis of cogent evidence thatthe respondent had worked for more than 240 days in the year preceding histermination. It was the case of the claimant that he had so worked but thisclaim was denied by the appellant. It was then for the claimant to lead evidenceto show that he had in fact worked for 240 days in the year preceding histermination. Filing of an affidavit is only his own statement in his favor andthat cannot be regarded as sufficient evidence for any court or tribunal to cometo the conclusion that a workman had, in fact, worked for 240 days in a year. Noproof of receipt of salary or wages for 240 days or order or record ofappointment or engagement for this period was produced by the workman. On thisground alone, the award is liable to be set aside....

26. In this regard, law laid down by the Supreme Court in thefollowing cases is also relevant:

(i) State of Gujarat v. Pratamsingh Narsinh Parmar .

(ii) Essen Deinki v. Rajiv Kumar .

(iii) Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. .

(iv) R.M. Yellati v. Asst. Executive Engineer .

27. In the present case, since it was the respondent workmen whohad claimed that the nature of work being performed by them was the same as thatof "Malis", the initial burden of proof lay on the respondent workmen to producecogent evidence and relevant documents, which they failed to discharge. Thusany conclusions drawn against the petitioner, merely on the basis of baldaverments of the respondent workmen cannot be held to be sufficient fordesignating the respondent workmen as Malis as done in the impugned award.

28. As per the Recruitment Rules of the petitioner, the postof Mali is a Group-D non-selection post, with a specified scale of pay, periodof probation, method of recruitment, entitlement to supply of uniform etc. asper applicable Rules. It has been held by the Supreme Court in the case ofState of Haryana (supra) that:

Para 10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutionalgoal to be achieved by the Government. Fixation of pay and determination ofparity in duties and responsibilities is a complex matter which is for theexecutive to discharge. While taking a decision in the matter, several relevantfactors, some of which have been noted by this Court in the decided case, are tobe considered keeping in view the prevailing financial position and capacity ofthe State Government to bear the additional liability of a revised scale of pay.It is also to be kept in mind that the priority given to different types ofposts under the prevailing policies of the State Government is also a relevantfactor for consideration by the State Government. In the context of the complexnature of issues involved, the far-reaching consequences of a decision in thematter and its impact on the administration of the State Government, courts havetaken the view that ordinarily courts should not try to delve deep intoadministrative decisions pertaining to pay fixation and pay parity. That is notto say that the matter is not justiciable or that the courts cannot entertainany proceeding against such administrative decision taken by the Government. Thecourts should approach such matters with restraint and interfere only when theyare satisfied that the decision of the Government is patently irrational, unjustand prejudicial to a section of employees and the Government while taking thedecision has ignored factors which are material and relevant for a decision inthe matter.

In the present case also, since the order of the Supreme Courtdated 29th September, 1988, has been complied with by the petitioner, there isno occasion for any interference by the Industrial Tribunal or this Court ineither the designation or the pay scales on which the respondents were absorbed,as such matters being in the exclusive domain of the Executive.

29. The Industrial Tribunal has misdirected itself andmisinterpreted the judgment of the Supreme Court by directing the management todesignate the respondent workmen as Malis from their respective dates ofregularisation and by extending the facilities of uniform, item of liveries,stitching charges, washing allowance and private conveyance/ cycle allowance tothem as per the rules applicable to Malis. Any such interpretation is not onlycontrary to the judgment rendered by the Supreme Court in the case of Uma Devi's(supra) but shall also tantamount to rewriting the order of the Supreme Court inNaider's case (supra), which is impermissible. The demands of judicialpropriety and prudence lies in veering towards, rather than straying away from the guidelines as laid down by the Supreme Court in Naider's case. If therespondent workmen sought to interpret the orders of the Supreme Court in sucha manner, then it was for them to have agitated the issue before the SupremeCourt itself and seek necessary clarifications before the said forum rather thandoing so before the Industrial Tribunal, particularly after taking benefit ofthe scheme formulated by the petitioner pursuant to the order dated 29thSeptember, 1988, passed by the Supreme Court and after being regularised in thepost of "casual labourers". There was ample opportunity for the respondentworkmen to have approached the Supreme Court for further necessaryclarifications, if required, which they chose not to do.

30. In the opinion of this Court, no such orders for directingredesignation of the respondent workmen as "Malis" from their respective datesof regularisation along with directions for extending other facilities to themto which Malis are entitled in accordance with the relevant rules, was calledfor or could have been granted to the respondent workmen. As the impugned awardis being set aside on the aforesaid count alone, this Court shall refrain frompassing any orders on the plea raised by the petitioner to the effect that theHorticulture Department is not an "industry".

31. In view of the aforementioned facts and circumstances of thecase and in the light of the judgments rendered by the Supreme Court, the writpetition is allowed and the impugned award dated 11th March, 2002 passed by thePresiding Officer, Industrial Tribunal is set aside. There shall be no ordersas to costs.