Delhi High Court
New Delhi Municipal Council vs Shri Rambir And Anr. on 21 December, 2011
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P.(C) 1208/2010
+ Date of Decision: 21st December, 2011
# NEW DELHI MUNICIPAL COUNCIL ....Petitioner
! Through: Mr. P.C. Sen & Ms. Aanchal Yadav,
Advocates
Versus
$ SHRI RAMBIR AND ANR. .....Respondents
Through: Mr. Rajiv Aggarwal & Mr. Anuj Aggarwal,
Advocates for R-1
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J: (ORAL)
The petitioner challenges the initiation of proceedings against it by
respondent no. 2 for the recovery of of ` 5,06,022 and the demand notice
dated 21st January, 2010 allegedly issued at the instance of the respondent
no.1/workman after he had got an award in his favour from the Industrial
Tribunal in ID No. 03/2008 directing his regularization as a Mali/Beldar as
per the petitioner's policy of regularization w.e.f. 1st April, 1997 but was
not paid his wages w.e.f. 1st April, 1997 payable to a regular employee.
2. The only grievance of the petitioner, as argued by its counsel, is that
even though the learned Tribunal had given the relief of regularization to
respondent no.1 vide its award dated 25th July, 2008 but no relief of any
kind of consequential benefit was given to him and consequently his
initiating recovery proceedings by approaching the Assistant Collector,
respondent no. 2 herein, for getting his wages as a regular employee from
1st April, 1997 was not justified and even the action of the Assistant
Collector in issuing the recovery certificate was not justified.
3. The concluding para of the award dated 25th July, 2008 of the
Industrial Tribunal giving the relief of regularization to respondent no. 1-
workman reads as under:-
"Keeping in view of the facts and circumstances and
discussion made above, the management is directed to
regularize the workman on the post of Mali/Beldar as per
policy w.e.f. 01.04.1997, the date when the counterparts of
the workman were regularized. The reference is answered in
favour of the workman. The award is passed, accordingly."
4. That award was challenged by the petitioner by filing a writ petition
(being W.P.(C) No. 9852/2009) but the same was dismissed by this Court
on 7th July, 2009. Thereafter, the respondent no. 1-workman appears to have
approached the concerned authorities for getting the difference in his wages
as a daily wager and regular employee and then the Assistant Collector
issued recovery certificate for ` 5,06,022.
5. There is no doubt that there was no specific direction given to the
petitioner-management to pay respondent no.1-workman his wages also as a
regular employee w.e.f 1st April, 1997 but it was clearly mentioned in the
award that respondent no.1-workman had to be regularized as per the
management's policy of regularization of daily wagers. During the course
of hearing today, learned counsel for the petitioner-management had
admitted that as per the policy of regularization formulated by petitioner-
management temporary/daily wage employees who were to be regularized
were entitled to all consequential benefits also. Learned counsel had also
today produced before me two awards of the Industrial Tribunal no. II
passed on 15th April, 2008 in I.D. No. 84/2005 & I.D. No. 86/2005 wherein
under similar circumstances, as exist in the present case, the NDMC had in
its written statement opposed the same kind of relief which the respondent
no.1 herein had claimed but after framing of issues the petitioner-
management through its Director (Horticulture) had agreed for passing of
an award for the regularization of the concerned workmen along with all
consequential benefits w.e.f. 1st April, 1997. Accordingly the awards were
passed in those two cases by the Industrial Tribunal directing the
regularization of the concerned workmen with all consequential benefits
was 1st April, 1997. The statements made on behalf of the NDMC by its
Director (Horticulture) in these two cases clearly show that as per the policy
of regularization of daily wagers any worker who was to be regularized was
entitled to get consequential benefits also. However, the benefit of wages of
a regular employee was not given to the respondent no. 1 by the petitioner
herein despite the fact that the Industrial Tribunal had directed his
regularization as per the policy of regularization framed by NDMC. No
justification was given by the petitioner as to why in the present case the
claim of the workman was not conceded as was done in the case of other
workers.
6. In these circumstances, the filing of the present writ petition by the
petitioner-management for challenging the respondent no.1-workman's
claim for wages as a regular employee w.e.f. 1st April, 1997 was highly
unjustified and in fact the petitioner-management's action in opposing the
claim of the respondent no.1 smacks of mala fides.
7. Counsel for the petitioner had also made a submission that earlier to
the raising of the dispute about his regularization the respondent no. 1 had
been removed from service and he had raised an industrial dispute
challenging the action of the petitioner-management and he had got the
relief of reinstatement in service. It was further submitted that even though
the reinstatement of respondent no. 1-workman had been ordered by the
Labour Court on 2nd September, 1999, he waited for about 5 years to raise a
demand for his regularization and there being no justified reason for that
much delay having been given by him, he was in fact not entitled to get any
relief whatsoever from the Industrial Tribunal. However, I am not inclined
to entertain this submission considering the fact that this writ petition was
not filed on this ground. In fact, when the relief of regularization was given
to respondent no.1-workman by the Industrial Tribunal w.e.f. 1st April,
1997, the petitioner-management had challenged the award of the Industrial
Tribunal but had failed in that challenge and its writ petition (being W.P.(C)
No. 9852/2009) was dismissed by this Court vide judgment dated 7th July,
2009. While dismissing the earlier writ petition this Court had observed in
its judgment that the Tribunal had directed the regularization of respondent
no.1-workman w.e.f. 1st April, 1997 with all consequential benefits.
Thereafter, the workman was regularized w.e.f. 1st April, 1997, as was
stated by the counsel for the petitioner. Thus, even otherwise now the
petitioner cannot contend that because of the delay in raising the dispute for
his regularization after his re-instatement had been ordered in the year 1999
the workman could not have been ordered to be regularized. Counsel for the
petitioner-management had also submitted that he had tried to get
instructions in the matter as to why the respondent no.1 in the present case
was not given the benefit of all consequential benefits even as per the
NDMC's policy of regularization as had been volunteered by the Director
(Horticulture) in the already referred two cases of other workmen but no
reason was furnished to him to be communicated to this Court during the
course of hearing and simply he was requested to seek more time to justify
the making of statement by Sh. Subhash Chandra in other two cases and not
in the present case. However, this Court did not consider it appropriate to
adjourn this matter for that purpose.
8. This writ petition is accordingly dismissed and as I have already
observed that filing of the present writ petition challenging the justified
demand of respondent no.1-workman smacks of mala fides and the
successful workman was forced to come to Court to contest this frivolous
writ petition costs of ` 25000 are also imposed upon the petitioner to be
payable to the respondent no. 1-workman.
P.K. BHASIN, J
DECEMBER 21, 2011
hk
