Delhi High Court
Sheela Devi & Ors. vs Mcd & Ors. on 27 July, 2009
Author: Ajit Prakash Shah
[Please see modified order appended below]
* IN THE HIGH COURT OF DELHI AT NEW DELHI
25.
+ LPA 173/2009
SHEELA DEVI & ORS. ..... Appellants
Through: Ms. Amita Singh, Adv.
versus
M.C.D. & ORS. ..... Respondents
Through: Mr. Sanjeev Sabharwal, Standing Counsel
for MCD
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
ORDER
% 27.07.2009
The appellants are the widow and children of late Sh. Dil Bagh who was
working as a Mali/Beldar in Horticulture Department of the Municipal
Corporation of Delhi. Late Sh. Dil Bagh raised an industrial dispute before
the Industrial Tribunal-III for regularization of his services. Dil Bagh died
during the pendency of the proceedings on 24.8.2002, survived by his widow
and two sons and one daughter, who were minor at the time of his death. It
appears that the daughter is mentally disabled, and one of the sons, i.e.
Hans Raj is missing for the last several years. The daughter and the second
son attained majority in 2006 and 2008 respectively. Vide award dated 1 st
August, 2003, the Industrial Tribunal-III declined the prayer of regularization.
The writ petition preferred by the appellants before the learned single Judge
was also dismissed on the ground of delay and laches. Hence, the appellants
have preferred this Letters Patent Appeal.
2. The admitted facts are that late Sh. Dil Bagh was appointed as a Mali/
Beldar on 30th December, 1984 in Khanjawala Nursery, Narela Zone of MCD.
It appears that in course of time, other Malis/Beldars who were similarly
situated were regularized in service. One Gauri Shankar, who was appointed
as Beldar/Mali, also approached the Industrial Tribunal for regularization and
in his case, he was directed to be regularized w.e.f. 1989 by a judgment of
Sikri, J. in MCD v. Gauri Shankar & Ors., 1995 V AD (Delhi) 905. Late Sh.
Dil Bagh made several representations to the Management to regularize his
services as the action of the Management in employing him as a casual or
temporary worker and to continue him for a number of years with the object
of depriving him of the status and privileges of a permanent workman
amounted to unfair labour practice, as provided in Section 2 read with Item
No.10 of the 5th Schedule of the Industrial Disputes Act, 1947. The
appropriate Government vide its order No. F.24(2977)/97-Lab/29468-74
dated 9.9.1997 referred the industrial dispute between the Management of
MCD and late Sh. Dil Bagh for adjudication to the Industrial Tribunal III on the
following terms of reference:
"Whether Shri Dil Bagh daily rated/casual/Muster Roll
Baildar/Mali is entitled to be regularized on the said post in
proper pay scale from his initial date of appointment i.e.
30.12.84 and whether he is entitled to difference of wages
at par with his regular counterparts from 30.12.84 onwards
and if so what directions are necessary in this regard".
3. Before the Industrial Tribunal, the stand of the Management was that
late Sh. Dil Bagh was arrested vide FIR No. 22 of 2.4.1992 under Section
302/201 IPC by Haryana police and he was subsequently arrested for offence
under the Prohibition Act vide FIR No. 349/1997 and was in custody from
19.11.1997 to 03.01.1998. Further, according to the Management, in
pursuance of the FIR No. 22, late Sh. Dil Bagh was arrested and was in police
custody from 01.01.1992 to 04.02.1992. The contention was that since the
criminal cases were pending against the workman, his services could not be
regularized. On the above pleadings, the Tribunal framed the following
issues for determination:
"ISSUES:
1. As per the terms of reference.
2. Whether the claim is maintainable? (OPM)
3. Whether the workman union has the locus standi to file
the claim? (OPW)
4. Whether the claim is barred by delay and laches? (OPW)
5. Whether the claim is not maintainable for the reasons
stated in Para 4 to 6 of the Preliminary Objections of
W.S.? (OPM)"
4. On the basis of evidence led by the parties, the Tribunal decided issues
No. 2 to 4 in favour of the workman. However, in so far as issue No.1 and 5
are concerned, the Tribunal held that the services of the workman could not
be regularized since there were criminal cases pending against the workman
and there was a break in service on account of the workman being in judicial
custody. The Tribunal further held that since the workman had died during
the pendency of the proceedings, the question of regularizing his services
does not survive.
5. We have heard Ms. Amita Singh, learned counsel appearing for the
appellants and Mr. Sanjeev Sabharwal, standing counsel for the respondent
MCD. In our opinion, it is impossible to sustain the award of the Industrial
Tribunal-III. It is clearly seen that the respondent MCD has suppressed the
facts from the Industrial Tribunal. In fact, in the earlier proceedings between
the MCD and the deceased workman being I.D. No. 83/1995, the termination
of the workman on account of pendency of the criminal case (FIR No.22 of
2.4.1992) was challenged before the Industrial Tribunal. The Industrial
Tribunal recorded a categorical finding that the workman was acquitted in
the criminal case by the Learned Additional Sessions Judge, Rohtak vide his
order dated 12.5.1993 and set aside the termination order of 01.01.1992 and
directed the MCD to reinstate the workman in service. The Tribunal also
directed the MCD to pay the back wages to the workman for the period
01.01.1992 to 27.4.1994. Thus, the MCD was not right in contending that
the regularization could not be granted because of the pendency of the
criminal cases and the break in service on account of the detention of the
workman in the police custody. In so far as the offence under the Prohibition
Act is concerned, there is nothing to show that any criminal case was lodged
in Court against the workman by the police. Therefore, the Industrial
Tribunal was clearly wrong in denying the workman's prayer for
regularization on account of the pendency of the criminal cases against him.
6. We may also mention that in MCD v. Gauri Shankar (supra), the
Tribunal had held that the workman was entitled to regularization from the
date of his appointment, i.e. 25.10.1983. The stand of the MCD before this
Court was that the workman Gauri Shankar was entitled for regularization
from 1.4.1989 as his turn for regularization came only in April, 1989. This
stand of the MCD was accepted by Sikri, J. and a direction was given to the
MCD to regularize the services of the workman Gauri Shankar from 1.4.1989.
In the present case, the MCD has not cared to produce on record the
seniority list or the other material relating to regularization of Malis/Beldars
in its establishment and it is not clear as to when the turn of late Sh. Dil Bagh
came for regularization. We presume that in view of the fact that Gauri
Shankar's services came to be regularized in April, 1989, ordinarily the
services of the workman in the present case would have been regularized by
April, 1990 since Gauri Shankar's appointment was one year prior to Dil
Bagh.
7. Our attention was also drawn to a decision of the Supreme Court in the
case of Jeet Singh v. MCD, AIR 1987 SC 1781. In that case, the writ
petition was filed by Class IV employees of MCD before the Supreme Court.
They were in continuous employment for several years and their services
were regularized by the MCD. The Supreme Court held that they are entitled
to salary and allowances on the same basis as paid to regular and
permanent employees from the date of their continuous employment. The
order passed by a two-Judges bench in Jeet Singh's case (supra) is
reproduced below:
"We understand that the services of the petitioners have
been regularised recently. Petitioners claim that they have
been in continuous employment ever since the year 1979
and that they are entitled to the Salary and Allowances as
are paid to regular and permanent employees on the
principle of equal pay for equal work. Following the Order
made in the Writ Petitions Nos. 3077-3111 of 1985 we
direct that these petitioners shall be entitled to the Salary
and Allowances on the same basis as paid to regular and
permanent employees from the date of their continuous
employment. Respondents will ascertain the date of their
continuous employment and payment as aforesaid will be
made to the petitioners within 3 months from today. The
matter is disposed of accordingly."
8. In the present case, the workman died in 2002 leaving behind his
widow who is an illiterate housewife and three children, who were minor
when he died. As indicated earlier, one of the sons is missing for the last
several years and the other son attained majority only in 2008. It appears
that the family had applied for compassionate appointment for the son Anil
which request was turned down by the MCD in January, 2008. It is well
settled that ordinarily a litigant does not stand to benefit by lodging an
appeal belatedly. In our opinion, in the present case, refusal to condone the
delay will result in a meritorious matter being thrown out at the very
threshold and the cause of justice will be defeated. As a result of the death
of the workman, the family has become practically destitute. In our opinion,
this is a fit case where the delay in approaching this Court ought to have
been condoned and the case should have been decided on merits.
9. In the result, we declare that the workman Sh. Dil Bagh was entitled to
be regularized in service with effect from 1st April, 1990 and was entitled
receive salary of a regular and permanent workman from 1st April, 1990 till
his death, i.e., 25.8.2002. The widow of the workman will be entitled to
family pension in accordance with the scheme applicable to MCD. The
differential amount along with the family pension shall be released to
appellant No.1 within a period of six weeks from today with simple interest @
9% from the date on which such amounts became due and payable to the
workman and his family. The appeal stands disposed of.
CHIEF JUSTICE
MANMOHAN, J
JULY 27, 2009
pk
[Modified order: Modifications/corrections carried out by the
Registrar General on 23.12.2009 on administrative side in terms of
order dated 26.10.2009 in CM No.13621/2009]
* IN THE HIGH COURT OF DELHI AT NEW DELHI
25.
+ LPA 173/2009
SHEELA DEVI & ORS. ..... Appellants
Through: Ms. Amita Singh, Adv.
versus
M.C.D. & ORS. ..... Respondents
Through: Mr. Sanjeev Sabharwal, Standing Counsel
for MCD
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
ORDER
% 27.07.2009
The appellants are the widow and children of late Sh. Dil Bagh who was
working as a Mali/Beldar in Horticulture Department of the Municipal
Corporation of Delhi. Late Sh. Dil Bagh raised an industrial dispute before
the Industrial Tribunal-III for regularization of his services. Dil Bagh died
during the pendency of the proceedings on 25.8.2002, survived by his widow
and two sons and one daughter, who were minor at the time of his death. It
appears that the daughter is handicapped, and one of the sons, i.e. Hans Raj
is missing for the last several years. The daughter and the second son
attained majority in 2006 and 2008 respectively. Vide award dated 1st
August, 2003, the Industrial Tribunal-III declined the prayer of regularization.
The writ petition preferred by the appellants before the learned single Judge
was also dismissed on the ground of delay and laches. Hence, the appellants
have preferred this Letters Patent Appeal.
2. The admitted facts are that late Sh. Dil Bagh was appointed as a Mali/
Beldar on 30th December, 1984 in Khanjawala Nursery, Narela Zone of MCD.
It appears that in course of time, other Malis/Beldars who were similarly
situated were regularized in service. One Gauri Shankar, who was appointed
as Beldar/Mali, also approached the Industrial Tribunal for regularization and
in his case, he was directed to be regularized w.e.f. 1989 by a judgment of
Sikri, J. in MCD v. Gauri Shankar & Ors., 1995 V AD (Delhi) 905. Late Sh.
Dil Bagh made several representations to the Management to regularize his
services as the action of the Management in employing him as a casual or
temporary worker and to continue him for a number of years with the object
of depriving him of the status and privileges of a permanent workman
amounted to unfair labour practice, as provided in Section 2 read with Item
No.10 of the 5th Schedule of the Industrial Disputes Act, 1947. The
appropriate Government vide its order No. F.24(2977)/97-Lab/29468-74
dated 9.9.1997 referred the industrial dispute between the Management of
MCD and late Sh. Dil Bagh for adjudication to the Industrial Tribunal III on the
following terms of reference:
"Whether Shri Dil Bagh daily rated/casual/Muster Roll
Baildar/Mali is entitled to be regularized on the said post in
proper pay scale from his initial date of appointment i.e.
30.12.84 and whether he is entitled to difference of wages
at par with his regular counterparts from 30.12.84 onwards
and if so what directions are necessary in this regard".
3. Before the Industrial Tribunal, the stand of the Management was that
late Sh. Dil Bagh was arrested vide FIR No. 22 of 2.4.1992 under Section
302/201 IPC by Haryana police and he was subsequently arrested for offence
under the Prohibition Act vide FIR No. 349/1997 and was in custody from
19.11.1997 to 03.01.1998. Further, according to the Management, in
pursuance of the FIR No. 22, late Sh. Dil Bagh was arrested and was in police
custody from 01.01.1992 to 04.02.1992. The contention was that since the
criminal cases were pending against the workman, his services could not be
regularized. On the above pleadings, the Tribunal framed the following
issues for determination:
"ISSUES:
1. As per the terms of reference.
2. Whether the claim is maintainable? (OPM)
3. Whether the workman union has the locus standi to file
the claim? (OPW)
4. Whether the claim is barred by delay and laches? (OPW)
5. Whether the claim is not maintainable for the reasons
stated in Para 4 to 6 of the Preliminary Objections of
W.S.? (OPM)"
4. On the basis of evidence led by the parties, the Tribunal decided issues
No. 2 to 4 in favour of the workman. However, in so far as issue No.1 and 5
are concerned, the Tribunal held that the services of the workman could not
be regularized since there were criminal cases pending against the workman
and there was a break in service on account of the workman being in judicial
custody. The Tribunal further held that since the workman had died during
the pendency of the proceedings, the question of regularizing his services
does not survive.
5. We have heard Ms. Amita Singh, learned counsel appearing for the
appellants and Mr. Sanjeev Sabharwal, standing counsel for the respondent
MCD. In our opinion, it is impossible to sustain the award of the Industrial
Tribunal-III. It is clearly seen that the respondent MCD has suppressed the
facts from the Industrial Tribunal. In fact, in the earlier proceedings between
the MCD and the deceased workman being I.D. No. 183/1995, the
termination of the workman on account of pendency of the criminal case (FIR
No.22 of 2.4.1992) was challenged before the Industrial Tribunal. The
Industrial Tribunal recorded a categorical finding that the workman was
acquitted in the criminal case by the Learned Additional Sessions Judge,
Rohtak vide his order dated 12.5.1993 and set aside the termination order of
01.01.1992 and directed the MCD to reinstate the workman in service. The
Tribunal also directed the MCD to pay the back wages to the workman for
the period 01.01.1992 to 27.4.1994. Thus, the MCD was not right in
contending that the regularization could not be granted because of the
pendency of the criminal cases and the break in service on account of the
detention of the workman in the police custody. In so far as the offence
under the Prohibition Act is concerned, there is nothing to show that any
criminal case was lodged in Court against the workman by the police.
Therefore, the Industrial Tribunal was clearly wrong in denying the
workman's prayer for regularization on account of the pendency of the
criminal cases against him.
6. We may also mention that in MCD v. Gauri Shankar (supra), the
Tribunal had held that the workman was entitled to regularization from the
date of his appointment, i.e. 25.10.1983. The stand of the MCD before this
Court was that the workman Gauri Shankar was entitled for regularization
from 1.4.1989 as his turn for regularization came only in April, 1989. This
stand of the MCD was accepted by Sikri, J. and a direction was given to the
MCD to regularize the services of the workman Gauri Shankar from 1.4.1989.
In the present case, the MCD has not cared to produce on record the
seniority list or the other material relating to regularization of Malis/Beldars
in its establishment and it is not clear as to when the turn of late Sh. Dil Bagh
came for regularization. We presume that in view of the fact that Gauri
Shankar's services came to be regularized in April, 1989, ordinarily the
services of the workman in the present case would have been regularized by
April, 1990 since Gauri Shankar's appointment was one year prior to Dil
Bagh.
7. Our attention was also drawn to a decision of the Supreme Court in the
case of Jeet Singh v. MCD, AIR 1987 SC 1781. In that case, the writ
petition was filed by Class IV employees of MCD before the Supreme Court.
They were in continuous employment for several years and their services
were regularized by the MCD. The Supreme Court held that they are entitled
to salary and allowances on the same basis as paid to regular and
permanent employees from the date of their continuous employment. The
order passed by a two-Judges bench in Jeet Singh's case (supra) is
reproduced below:
"We understand that the services of the petitioners have
been regularised recently. Petitioners claim that they have
been in continuous employment ever since the year 1979
and that they are entitled to the Salary and Allowances as
are paid to regular and permanent employees on the
principle of equal pay for equal work. Following the Order
made in the Writ Petitions Nos. 3077-3111 of 1985 we
direct that these petitioners shall be entitled to the Salary
and Allowances on the same basis as paid to regular and
permanent employees from the date of their continuous
employment. Respondents will ascertain the date of their
continuous employment and payment as aforesaid will be
made to the petitioners within 3 months from today. The
matter is disposed of accordingly."
8. In the present case, the workman died in 2002 leaving behind his
widow who is an illiterate housewife and three children, who were minor
when he died. As indicated earlier, one of the sons is missing for the last
several years and the other son attained majority only in 2008. It appears
that the family had applied for compassionate appointment for the son Anil
which request was turned down by the MCD in January, 2008. It is well
settled that ordinarily a litigant does not stand to benefit by lodging an
appeal belatedly. In our opinion, in the present case, refusal to condone the
delay will result in a meritorious matter being thrown out at the very
threshold and the cause of justice will be defeated. As a result of the death
of the workman, the family has become practically destitute. In our opinion,
this is a fit case where the delay in approaching this Court ought to have
been condoned and the case should have been decided on merits.
9. In the result, we declare that the workman Sh. Dil Bagh was entitled to
be regularized in service with effect from 1st April, 1990 and was entitled
receive salary of a regular and permanent workman from 1 st April, 1990 till
his death, i.e., 25.8.2002. The widow of the workman will be entitled to
family pension in accordance with the scheme applicable to MCD. The
differential amount along with the family pension shall be released to
appellant No.1 within a period of six weeks from today with simple interest @
9% from the date on which such amounts became due and payable to the
workman and his family. The appeal stands disposed of.
CHIEF JUSTICE
MANMOHAN, J
JULY 27, 2009
pk
