Delhi High Court

Municipal Corporation Of Delhi vs Raj Kumar on 20 April, 2011

Author: Rajiv Sahai Endlaw

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 20th April, 2011

+                                 W.P.(C) 769/2010

         MUNICIPAL CORPORATION OF DELHI           ..... Petitioner
                     Through: Ms. Manjira Dasgupta for Ms. Shyel
                              Trehan, Advocate.

                                      Versus
         RAJ KUMAR                                             .... Respondent
                              Through:    None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the award dated 14th July, 2008 of the

Industrial Adjudicator on the following reference:-

"Whether demand to regularize Sh. Raj Kumar s/o Sh. Birbal, daily wage Safai Karamchari in the proper pay scale from the date of his initial appointment is justified and if yes to what relief is he entitled."

in favour of the respondent workman and directing the petitioner

employer to regularize the workman on the post of Safai Karamchari as per

policy of daily wager/muster roll employee in its phased manner

programme.

2. Notice of the petition was issued. The respondent workman failed to

file the counter affidavit inspite of opportunity and after one appearance,

also stopped appearing and is proceeded against ex parte. The counsel for

the petitioner MCD has been heard.

3. The writ petition has been preferred after more than 1 ½ years of the

award. The petitioner MCD has in the list of dates disclosed that the

respondent workman had already filed an application under Section 33C of

the Industrial Disputes Act, 1947 for implementation of the award. There is

no explanation whatsoever for the delay in preferring the writ petition. No

stay of operation/implementation of the award was granted in the present

proceedings also. It is presumed that the award has been implemented by

now. However since the same entails recurring payment by the petitioner

MCD to the respondent workman, the matter has also been considered on

merits.

4. It was the case of the respondent workman that he was appointed as

a daily wage Safai Karamchari in the petitioner MCD on 1 st January, 1993

and had been performing full time duties of sweeping the roads; that since

he was performing the same work as the other permanent employees of

MCD he was entitled to receive the same salary/emoluments but the same

were denied to him; his employment was not even being regularized

inspite of representations and he was, inspite of having remained in

employment with the petitioner MCD for 15 years, being treated as a daily

wage Safai Karamchari. The petitioner MCD contested the claim of the

respondent workman before the Industrial Adjudicator by pleading that the

respondent workman was initially engaged as "Evajdar Safai Karamchari

(Substitute)" and he was not working on the muster roll as a daily wager

and was thus not entitled for regularization as even under the policy for

regularization it was only the daily wager muster roll employees who were

entitled to regularization; that the Evajdar Safai Karamchari first converts

into daily wager on muster roll and after working so for 240 days is

regularized.

5. The Industrial Adjudicator on the basis of the statement of the

witness of the petitioner MCD in cross examination to the effect that the

salary of the respondent workman was being paid on muster roll, held the

respondent workman entitled to regularization in accordance with the

circulars of the petitioner MCD, proved before the Industrial Adjudicator

as Ex.WW1/1 & WW1/2 regarding regularization. The respondent

workman was however not held entitled to, with effect from his initial

appointment, the same emoluments as the other employees of the petitioner

MCD performing the same work.

6. It is the pleading of the petitioner that the policy of the petitioner

MCD contained in the circulars aforesaid of regularization is applicable to

the muster roll employees and not to an „evajdar‟ employee as the

respondent was. Since the Industrial Adjudicator has held the respondent

workman to be entitled to benefit of the said circulars on the basis of

admission in cross examination of the witness of the petitioner MCD to the

effect that the salary of the workman respondent was paid on muster roll, it

was enquired from the counsel for the petitioner MCD as to what was

wrong with the said finding. It may be noted that no ground in this regard

has been pleaded. The counsel for the petitioner MCD has handed over the

copy of the cross examination of the witness of the petitioner MCD and

which shows that the admission as attributed by the Industrial Adjudicator

to the said witnesses was indeed made by the witness. That being so, no

case for interference with the finding of the Industrial Adjudicator of the

respondent workman being a muster roll employee and being thus entitled

to the benefit of the policy of the petitioner MCD of regularization as

contained in the circulars aforesaid can be made out.

7. The emphasis of the petitioner MCD is however that no relief of

regularization could have been granted by the Industrial Adjudicator.

Reliance in this regard placed on:-

a) Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1

laying down in para 43 thereof that unless the appointment

is in terms of relevant rules and after a proper competition

amongst qualified persons, the same would not confer any

right on the appointee and merely because a temporary

employee or a casual wage worker is continued for a time

beyond the term of his appointment, he would not be

entitled to be absorbed in regular service or made

permanent merely on the basis of such continuance;

b) Hindustan Aeronautics Ltd. v. Dan Bahadur Singh

(2007) 6 SCC 207 laying down in para 38 thereof that

regularization of a ad hoc workers is an executive function

and deprecating the practice/tendency of Courts/Tribunals

to legislate or perform execution functions;

c) Madhyamik Shiksha Parishad, U.P. v. Anil Kumar

Mishra (2005) 5 SCC 122 laying down in para 5 thereof

that completion of 240 days‟ work does not import the

right to regularization and it merely imposes certain

obligations on the employer at the time of termination of

the service;

d) M.P.Housing Board v. Manoj Shrivastava (2006) 2 SCC

702 laying down in para 17 thereof that only because a

person had been working for more than 240 days, he

would not derive any legal right to be regularized in

service.

8. Attention of the counsel for the petitioner was invited to the

judgment of the Apex Court in Maharashtra State Road Transport

Corporation v. Casteribe Rajya P. Karmchari Sanghatana (2009) 8 SCC

556 wherein it was laid down that the principle in Umadevi does not apply

to Industrial Adjudicator and under the ID Act and who upon finding

prevalence of an unfair labour practice and which under Clause 10 of the

Part I of the Fifth Schedule to the ID Act includes employment of

workman as badli, casual or temporary and to continue them as such for

years with the object of depriving them of the status and privileges of

permanent workmen, are authorized to issue appropriate directions to the

employer.

9. Moreover the aforesaid question also would not arise in the present