Its Workmen And Ors. vs Government Of Nct Of Delhi [Along ...
2007 Latest Caselaw 1818 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. By this common judgment and order we propose to dispose of both the appeals as the issues, which arise for our consideration, are similar and identical.

2. These appeals arise out of the award of the Industrial Tribunal under which the Industrial Adjudicator had directed the respondent to designate the workmen as Mali from the date of their regularisation and also to extend to them all facilities and benefits arising out of being declared as Mali.

3. All the workmen, who are appellants, were engaged as casual labourers in the Horticulture Department of the Government of NCT of Delhi. Seeking regularisation, certain groups of such workmen moved the Supreme Court in 1983. On 29th September, 1988, an order was passed by the Supreme Court on the said petitions filed by some of the workmen on which strong reliance is placed by both the parties. The workmen, who filed the said petition before the Supreme Court were casual labourers and were working in the Soil Conservation Department. By filing the said petition, they prayed that their services be regularised. In terms of the aforesaid prayer, the Supreme Court passed the following order:

Following a number of decisions rendered by this Court on the question of regularization of casual workers and the need for paying them the minimum salary payable to a regular employee in a comparable post, we issue a direction to the Delhi Administration to prepare a scheme for absorbing the casual labourers, who have worked for one year and more in the Soil Conservation Department as regular employees within six months from today and to absorb all such casual labourers who are found fit to be regularised under the scheme as regular employees. Until they are so absorbed the Delhi Administration shall pay w.e.f. 1.10.1988 to each of the casual labourers working in the Soil Conservation Department the salary or wages within six months from today and to absorb all such labourers who are found fit to be regularised under scheme as regular employees. Until they are so absorbed the Delhi Administration shall pay w.e.f. 1.10.1988 to each of the casual labourers working in the Soil Conservation Department the salary or wages at the rate equivalent to the minimum salary paid to a regular employee in a comparable post in the Soil Conservation Department.

4. Thereafter certain clarificatory orders dated 6th March and 12th March, 1990 were passed by the Supreme Court, which relate to expression 'salary' or 'wages'. In compliance of the aforesaid orders passed by the Supreme Court, the respondents created 999 posts of Casual Labourers in the scale of Rs. 750-950 on 21st March, 1991. The concerned workmen and the appellants herein were also regularised as against the aforesaid posts of Casual Labourers. On 23rd March, 1994, further 120 posts were created and termed as diminishing cadre to accommodate those workmen who were over-aged and could not be regularised as casual labourers.

5. The contention that is sought to be raised by the appellants/workmen is that they should have been regularised against the post of Mali which was the lowest comparable post to that of the casual workmen and, therefore, they are entitled to be paid the pay scale of a Mali. About 350 workmen moved the Central Administrative Tribunal (CAT) in the year 1997, 1998 and 1999 with a prayer that they be designated as Mali and be given allowances as per Rules. The said petitions were disposed of by the Central Administrative Tribunal by order dated 28th January, 1999 and 12th August, 1999, wherein it was held that since the workmen had been regularised, their service record was being maintained, and they were eligible to all admissible allowances including medical facilities and promotional avenues, no further directions were required to be passed. The Tribunal also held in another order passed on 17th August, 2001 that while Malis were getting higher benefits, the applicant workmen, in spite of performing almost similar duties, were not getting the same benefits. However, the Tribunal held that it had no power to pass orders for re-designating or creating posts, and issue a direction to the Government to consider the claim of the applicant workmen for according them benefits as admissible to regular Malis with effect from the date of their regularisation.

6. In the year 1997, one Shri Jai Pal, raised an industrial dispute before the Industrial Tribunal seeking re-designation of the post of casual labourer to that of Mali. The Industrial Tribunal passed an award in favor of all the appellants, which came to be challenged by the respondent by filing a writ petition. The order passed in the said writ petition is the subject matter of the present appeal.

7. We have heard learned Counsel for the parties and also perused the records. We have also perused the award. A bare perusal of the award indicates that reference was answered in favor of the workmen mainly on the premise that the respondent 'management did not dispute that persons like the appellants' workmen are also some time designated as Mali and, therefore, the contention that the present appellants cannot be appointed as Malis but could only be appointed as Casual Labourers was without any basis.

8. The learned Single Judge did not agree with the aforesaid findings recorded by the Industrial Adjudicator on the ground that the appointment letter given to the appellants also indicated the nature and conditions of their service. It was held that nothing could be imposed by issuing a direction for re-designation of the post of Casual Labourer sanctioned by the Government as a Mali.

9. Initially there was only one workman, who had raised the dispute and at his request reference was made to the Industrial Adjudicator. It is stated that several others thereafter joined the fray and although initially there was only one workman, as of now there are several workmen involved in the present appeal. Since similar questions are involved in respect of the service conditions of the workmen, we, therefore, do not dismiss their appeals on the said ground, as we propose to look into various pleas and contentions raised before us.

10. In 1988, the Supreme Court had passed an order directing the respondents to prepare a scheme for regularisation of the service of the appellants. The said order was complied with by the respondents by creating posts for the said Casual Labourers. The appellants have been regularised as against the aforesaid posts and not against the posts of Mali. If the appellants had any grievance at that stage, it was open for them to move the Supreme Court alleging non-compliance of the orders passed by the Supreme Court. The respondents formulated a scheme, created new posts of Casual Labourers as against which the appellants were appointed and regularised. Once the appellants accepted the aforesaid terms and conditions of appointment and did not raise any dispute with regard to their appointment in the newly created posts of Casual Labourer at the relevant time, they cannot now turn back and claim to be designated as Malis. They are also not entitled to claim various benefits and perks attached to the post of Malis. Once having accepted the postings given to them by the respondents by regularising them against the newly created posts of Casual Labourers, the subsequent claim made by the workmen to be appointed as Malis before the Tribunal was rightly held not to be justified by the learned Single Judge. In case the present appellants were aggrieved by the manner in which the respondents implemented the order of the Supreme Court and formulated a scheme to absorb them by creating posts of Casual Labourers instead of creating a comparable cadre, nothing stood on their way from approaching the Supreme Court, which they did not do and, therefore, practically accepted the orders passed in compliance with the directions given by the Supreme Court. The principles of waiver and acquiescence would definitely apply in the facts and circumstances of the present case.

11. The learned Single Judge also held in the judgment that there was no evidence in the nature of documents placed on record to show that the nature of duty being performed in CPWD, MCD, DDA and NDMC by Malis is similar to that of the nature of work being done by the appellants / workmen in Delhi Administration and accordingly learned Single Judge has observed that it is not possible to pass any order that both set of workers are doing similar work and are entitled to have parity of pay scales. The aforesaid findings and conclusions arrived at by the learned Single Judge are findings of fact and we are not inclined to proceed for a re-appreciation of the entire documents placed on record. Similar claims were earlier made before the Tribunal, but were rejected, with the Tribunal holding in its orders dated 28th January, 1999, 12th August, 1999 and 17th August, 2001 that no direction for re-casting of posts can be given.

12. As per the Recruitment Rules of the respondent, the post of Mali is Group 'D' non-selection post, with a specified scale of pay, period of probation and method of recruitment. There is a set of rules laid down as to how recruitment to the aforesaid post is to be made. The direction of the Supreme Court stood complied with by the respondents when they regularised all the workmen in the posts of Casual Labourer as that was the direction issued by the Supreme Court. If the appellants desired to be recruited as against the post of Mali, they have to go through the process of recruitment as laid down under the Rules. They cannot under any stretch of imagination claim that they have to get parity of pay scale with that of Mali, which is a Group-D, non selection post. The learned Single Judge has categorically held that there is no evidence on record so as to enable the court to come to a conclusion that the nature of work discharged by the appellants is similar to that of a Mali.

13. In that view of the matter, in our considered opinion the learned Single Judge was justified in coming to the conclusion that no such order for directing re-designation of the workmen as Mali from the date of their regularisation could be passed. We, therefore, find no justification and/or ground to interfere with the order passed by the learned Single Judge as in our considered opinion the conclusions which are arrived at by the learned Single Judge are legal and valid and cannot be said to be in any manner arbitrary or irrational. However, in the facts and circumstances of the case, we consider it appropriate to observe that as and when an advertisement is made for filling up the post of Mali, the appellants should be given an opportunity to apply as against the said post and they should be considered for being recruited as Mali, as the said post has a better pay scale and better perks than what is being enjoyed by the appellants in the present circumstances. If and when such applications are made, the same shall be considered giving due weightage to the nature of work that the appellants have been doing.

14. In terms of the aforesaid order, the appeals stand disposed of.