Indian Airlines Kamgar Sanghtan vs National Aviation Company Of ...
2010 Latest Caselaw 4675 Del

*            HIGH COURT OF DELHI : NEW DELHI


+          CM No.10568/2010 in WP (C) No.5202/2010

%                            Judgment decided on : October 05, 2010

Indian Airlines Kamgar Sanghtan                   ......Petitioner
                    Through: Mr. V.K. Rao, Sr. Adv. with Mr. Saket
                               Sikri, Adv.

                      Versus


National Aviation Company of India
Ltd. & Anr.                                        .....Respondents
                    Through: Mr. Lalit Bhasin, Ms. Ratna Dhingra,
                               Ms. Shreya Sharma, Advs. for R-1.
                               Mr. Ashok Singh, Adv. for R-2.
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

MANMOHAN SINGH, J.

1. Indian Air Lines Kamgar Sangthan has filed the present writ

petition for issuance of a writ of mandamus thereby seeking direction

against the respondents to regularize the service of the petitioners from

the date of their joining and also grant service benefits equivalent to the

other employees working on similar posts with the petitioners.

2. The petitioners have been working with the respondent No.1

continuously with effect from 1997 against the permanent regular

vacancies. According to the petitioners, a legitimate right has accrued

in their favour to get regularization and also to receive service benefits

at par with the other regular employees. The contention of the petitioner

is that as per information given by the respondents themselves under

RTI Act, 2005, about 2500 vacancies in various posts are existing with

the respondent No.1. There were earlier litigations between some of

the petitioners and the respondents before this Court as well as in the

Supreme Court pertaining to the regularization etc. Some of the

petitioners filed a writ petition before this Court challenging the

termination and seeking relief of regularization and equal pay for equal

work and by order dated 12.7.1998, the writ petition was disposed of

stating that the priority be given to the petitioners in the matter of

regularization.

3. One of the grievances of the petitioners is that despite the

order as well as more than 2500 vacancies which are existing with the

respondent No.1, they have not been regularized but also they are being

deprived by the respondent No.1 to receive the service benefits at par

with the regular employees. The writ petition along with the interim

application was listed before this Court on 4.8.2010 when the show

cause notice was issued to the respondents. In the interim application

being CM No.10261/2010, the limited order was passed to the effect

that till next date of hearing, the respondents shall not dislocate the

petitioners from their present place of posting within Delhi. The next

date of hearing in the matter is 16.12.2010. Subsequently, the

petitioners filed a present application being CM No.10568/2010 under

Section 151 CPC for seeking direction against the respondents to pay

daily wages to the petitioners as per notification issued by the

Appropriate Government by adding the component of variable DA,

HRA and CCA with effect from 1.2.2010.

4. The contention of the petitioners in this application is that the

respondents are denying the minimum wages to the petitioners as

notified by the Delhi Government with effect from 1.2.2010. The action

of the respondents is malafide and not sustainable in law. The said

notification shows that unskilled worker is entitled to get Rs.203/- per

day, the semi-skilled worker is entitled to get Rs.225/- per day and a

skilled worker is entitled to get Rs.248/- per day. Hence, the minimum

wages as determined by the Appropriate Government must be paid to

the petitioners with the aforesaid components with effect from 1.2.2010.

5. It is also submitted by the petitioners that they are entitled to

the said component in terms of the past practice of the respondents

whereby the minimum wages and different percentage given to

unskilled, semi-skilled and skilled workers by Govt. of Delhi and by

NACIL in the year 1996, 1999, 2002 and 2005. The contention of the

petitioners is that after the year 2008, the respondents have not

increased the minimum wages of the unskilled and semi-skilled

employees. As per the petitioners if the components as prayed in the

application are added, the semi-skilled employees will get daily wages

of Rs.333.58/- and the unskilled employees will get daily wages of

Rs.314.76/-. It is stated that the action of the respondents is arbitrary in

nature and is violative of Articles 14, 16, 21 and 39(d) of the

Constitution of India. It is also prayed that the relief of the said amount

be granted retrospectively with effect from 1.2.2010.

6. The application of the petitioners is strongly opposed by the

respondent No.1 on various grounds including the objection of

pendency of the earlier application for the same relief. The other

objections are that prior to the filing of the present writ petition, the

petitioners had already approached the Industrial Tribunal and raised the

industrial dispute on the substantially similar issues which is pending

before the Regional Labour Commissioner, New Delhi. Since the writ

petition itself is not maintainable, on this ground alone amongst others,

the relief sought in the application cannot be granted.

7. On merit it is stated that Aviation Industry is going through

turbulent times and is facing critical financial situation and in thereof, in

the year 2008 the respondents had taken a conscious decision not to

increase the minimum wages of daily wager as per the earlier practice.

It is submitted that the petitioners while claiming the relief made in the

application are in a way stating that they be placed in regular pay scale

and are seeking regularization of their service through backdoor by

obtaining interim relief and if the relief as granted it will not only

amount to regularising their services to which they are not entitled but

will also make the entire writ petition infructuous.

8. It is also stated by the counsel for the respondent No.1 that

only the permanent employees of the company are entitled to DA, HRA

and CCA. The nature of the engagement of the petitioners is casual and

they are not entitled to these allowances. Granting the same relief

would amount to regularization for which they are not entitled through

the backdoor.

9. As far as first objection of pendency of the earlier application

filed by the petitioners is concerned, the relief sought by the petitioners

in both the applications are materially dissimilar for the reason that in

the present application the petitioners are seeking the relief under the

notification issued by the Government w.e.f. 1.2.2010 and not as per the

pay scale of the regular employees of the respondent No.1. There is

force in the submission of the learned counsel for the petitioners that in

case the writ petition is allowed after hearing on merit, then the

petitioners would be entitled for all the benefits at par with the regular

employees of the respondent No.1 including the leave benefits. At this

stage, the petitioners are praying for the grant of minimum wages of the

unskilled/semi-skilled employees of daily and casual employee as per

the notification issued by the Government and other component in terms

of past practice. Therefore, the first submission of the respondent No.1

cannot be accepted.

10. As regard the second submission of the respondent No.1

regarding the pendency of the alternative remedy taken by the

petitioners before the Industrial Tribunal is concerned, the respondents

have yet to file the counter affidavit. The maintainability of the writ

petition no doubt has to be considered at the time of hearing of the writ

petition.

11. As far as relief claimed by the petitioners in this application

is concerned, Mr. Lalit Bhasin, counsel for the respondent No.1, has

argued that the said relief could only be granted by the Industrial

Tribunal under Section 33C (2) of the Industrial Disputes Act read with

Schedule II and III of the Rules.

It is an undisputed fact that the petitioners in this application

are not claiming the same benefits which are extended to the permanent

employees of the company. Rather it has been admitted in the writ

petition that they are causal workers and claiming the relief under the

notification issued by the Central Government and praying that the

interim arrangement be made till the final disposal of the present writ

petition. Thus, granting of the interim relief, if any, would not amount

to regularizing their services as neither the petitioners are being placed

in the regular pay scale nor their services are being regularized. Had the

petitioner claimed the same benefits/pay scale at par with the regular

employees of the respondent No.1 then there would have been force in

the submission of the respondent No.1. However, the case of the

petitioner is about benefit of minimum wages be issued to the petitioner

in view of the notification issued by the Central Government, thus, the

application is maintainable as this court is not adjudicating the issue of

granting the benefits at par with regular employees.

12. As regard the submission of the respondent No.1 that the

respondent is facing critical financial situation, it appears from the

material placed by the petitioners that the respondent No.1 has revised

the scales of permanent employees and other allowances with effect

from the year 2000. The respondent No.1 in its letter dated 7.7.2009

admits about 2500 vacancies are existing. The respondents are not

disputing the fact that they are also out sourcing their work despite the

order dated 12.7.1998 wherein it was observed by this Court to the

respondent No.1 to give priority to the petitioners in the matter of

regularization.

13. Under these circumstances, without considering the matter

on merit, as main writ petition is listed before the Court on 16.12.2010,

this court is of the considered view that the petitioners till the disposal

of the writ petition shall be entitled to get the benefit of daily wages as

per the notification issued by the Appropriate Government from the

respondent No.1 and other benefits in terms of past practice. As far as

arrears from the period 1.2.2010 are concerned, the respondent No.1 is

granted two weeks time to pay the same.

14. With these directions the application is disposed of.

MANMOHAN SINGH, J.

OCTOBER 05, 2010 jk