Delhi High Court

The Management Of Cpwd vs Har Lal on 17 March, 2011

Author: Rajiv Sahai Endlaw

             *IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Date of decision: 17th March, 2011
+                             W.P.(C) 14238/2006

         THE MANAGEMENT OF CPWD
                                                       ..... Petitioner
                            Through: Mr. R.V. Sinha, Mr. R.N. Singh &
                                       Ms. Sangita Rai, Advocates.
                                   versus
         HAR LAL                                             ..... Respondent
                            Through: Mr. Ravinder Kumar Sharma,
                                       Advocate.
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 challenge in this petition is to the award dated 11 th October,

2004 of the Industrial Tribunal on the following reference:

"Whether the action of the management of CPWD - Executive Engineer, "A" Division. CPWD and the Superintending Engineer (Electrical), Coordination Circle (Elect.) in not regularizing the services of Shri Harlal Singh as Mason w.e.f.

April, 1986 is justified? If not, to what relief the workman is entitled to."

2. The Industrial Tribunal held that the action of the petitioner

employer in not regularizing the services of the respondent workman as

Mason w.e.f. April, 1986 to be unjustified and held the workman to be

deserving of being regularized from April, 1986, with all benefits and

emoluments that had accrued to the permanent employees on the same

date. The petitioner employer was directed to pay the arrears which had so

become due, within one month of the award failing which the same were to

incur interest at 6% per annum.

3. This writ petition impugning the award dated 11 th October, 2004 was

filed in or about May, 2006 i.e. after more than 1 ½ year; in the petition the

delay was attributed to the decision making process in the petitioner

employer. Be that as it may, on 11th September, 2006 notice of the petition

was issued and the operation of the award stayed. The said order has

continued to remain in force till now. The respondent workman has filed a

counter affidavit to which rejoinder has been filed by the petitioner

employer. The counsels have been heard.

4. The respondent workman had approached the Labour Court with a

case of having been initially inducted in the petitioner employer as a

Mason in the year 1986 and inspite of having completed 240 days each

year, to be qualified to be regularized as a regular Mason, having not been

so regularized. The petitioner employer in its reply before the Labour

Court did not dispute the induction aforesaid of the respondent workman as

Mason in the year 1986 and having continued on daily basis with the

petitioner employer since then. It was however pleaded that the first entry

date of the respondent workman was after 19th November, 1985 when ban

was imposed on direct recruitment. It was also pleaded that the respondent

workman had not passed the trade test for regularization purposes.

5. It however appears that subsequently a document dated 1 st October,

1985 was produced before the Industrial Tribunal and which contained the

name of the respondent workman amongst those to whom wages for the

period w.e.f. 21st August, 1985 to 20 th September, 1985 were paid. The

respondent workman on the basis thereof pleaded that he had in his claim

petition wrongly claimed his induction in the petitioner employer w.e.f.

April, 1986 and that in fact he was inducted into the services on 21 st

August, 1985 i.e. before the ban dated 19th November, 1985 on direct

recruitment.

6. The Industrial Tribunal in the award has not adjudicated as to

whether the respondent workman was first inducted on 21 st August, 1985

i.e. before the ban or in April 1986 i.e. after the ban. It was held that the

same was immaterial for the reason that even if the workman was inducted

after the ban on recruitment, the respondent workman having nevertheless

been recruited, the ban was irrelevant. With respect to the trade test it was

held that since the respondent workman had worked for nearly 10 years

prior to reference and for nearly 20 years by the time of making of the

award, was entitled to relaxation in the matter of test which should have

been taken at the time of initial appointment.

7. The writ petition challenges the award as bad on the ground of:-

a. The appointment of the respondent workman being bad/illegal

for the reason of being after the ban and without trade test;

b. For the reason of the recruitment rules of the petitioner

employer providing that no muster roll employee shall be

considered eligible for appointment on regular post unless

possesses the requisite qualifications and passes the prescribed

test(s);

c. The direction for regularization being in violation of the

judgment of the Constitution Bench of the Apex Court in

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

and subsequent judgments of the Supreme Court cited in the

petition itself and following the judgment in Umadevi.

8. I may notice that in so far as the controversy as to the date of initial

induction of the respondent workman in the petitioner employer is

concerned, the petitioner employer in its rejoinder to the counter affidavit

(in the present proceedings) of the respondent workman has in para (v) of

the reply to preliminary objections admitted that the initial date of

engagement of the respondent workman was 21 st August, 1985 but as a

Beldar and the initial date of engagement as a Mason was 21 st April, 1986.

It is further stated that the respondent workman is still continuing as a

Mason on muster roll.

9. It is indeed a sad commentary on the state of affairs that a workman

has continued on muster roll for the major part of his working life i.e. for

25 years and without being regularized. Such engagement benefits neither

the employer nor the employee. Inspite of practice being repeatedly

deprecated by the Courts, the same unfortunately continues to be pursued

by the State.

10. However the Apex Court in Umadevi (supra) having held that

emotions or sympathy has no place in such matters, the matter has to be

viewed legally.

11. The Apex Court in Umadevi undoubtedly held that the Courts

cannot issue directions for regularization of employees and held the same

to be an executive function. The award in the present case even though of a

date prior to the judgment in Umadevi would thus be in the teeth of the

said judgment.

12. However the Apex Court in Maharashtra State Road Transport

Corporation v. Casteribe Rajya Parivahan Karmchari Sanghatana

(2009) 8 SCC 556 held that the purpose and object of Maharashtra

Recognition of Trade Unions and Prevention of Unfair Labour Practices

Act, 1971 with which it was concerned in that case was to provide for

prevention of unfair labour practices and that the Industrial and Labour

Courts were empowered, if unfair labour practice was proved, to declare

that unfair labour practice and direct the person indulging in the same, to

cease and desist from such unfair labor practice and take such affirmative

action including payment of reasonable compensation to the employee

affected by the unfair labour practice. It was further held that such issues

pertaining to unfair labour practice were not referred to, considered or fall

for consideration by the Constitution Bench in Umadevi case. In the facts

of that case it was found that the Industrial Court having found the

employer in that case to have indulged in unfair labour practice of

continuing employees for years with the object of depriving them of status

and privileges of permanent employees, was entitled to direct the employer

to reinstate the employees.

13. What has been held by the Apex Court in relation to the Maharashtra

Act (supra) would equally apply to the Industrial Disputes Act, 1947 also.

Section 2(ra) defines "unfair labour practice" as practices specified in the

Fifth Schedule to the Act. Clause 10 of Part-I of the Fifth Schedule is as

under:-

"to employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."

14. Section 25 T of the ID Act prohibits employers from committing any

unfair labour practice and Section 25U makes the person committing

unfair labour practice punishable with imprisonment which may extend to

six months or with fine or with both.

15. It would thus be seen that the position here is no different from that

noticed by the Supreme Court in Casteribe (supra). Whether an employer

has practiced unfair labour practice or not would be an industrial dispute

within the meaning of Section 2(R) of the ID Act. The Supreme Court in

Casteribe held that the power of Industrial and Labour Courts did not fall

for adjudication or consideration before the Constitution Bench. It was

further held that Umadevi does not denude the Industrial and Labour

Courts of their statutory power to order permanency of the workers who

have been victim of unfair labour practice on the part of the employer

where the posts on which they have been working exists. Umadevi was

held to be incapable of an interpretation of overriding the powers of the

Industrial and Labour Courts in passing appropriate orders under the ID

Act, once unfair labour practice on the part of the employer is established.

16. It has not been and it is not the case of the petitioner employer herein

that in the last over 25 years since when the respondent workman has been

employed with it, there has been no post of a Mason and/or that no one else

in the said 25 years and/or 20 years preceding the award had been

appointed to the post of Mason. The only defence to the claim of the

respondent workman was of his initial induction being after the ban.

However, the said defence also fails in view of the admission as aforesaid

in the rejoinder filed in the present proceedings. The initial induction has

been admitted to be of a date prior to the imposition of the ban. Merely

because such initial induction was as a Beldar and upon the respondent

workman continuing to be employed on muster roll he was after the ban

promoted as a Mason would in my opinion not make any difference

whatsoever.

17. The dispute referred to the Industrial Tribunal in the present case

and the award, even though not expressly using the expression „unfair

labour practice‟ but the substantial meaning of the reference as well as the

award was that only.

18. I have in New India Assurance Co. Ltd. v. Shri Narender Kumar

(2010) IV LLJ 498 (Del) though noticing the judgment in Casteribe,

interfered with the award for the reason of not finding any unfair labour

practice.

19. The counsel for the petitioner employer relies on :-

i. Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian

Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 - not only

is this judgment of a date prior to the judgment in Casteribe

but in this case it was found that the temporary employments

were on compassionate grounds without existing post and the

employer company was sick and before the BIFR;

ii. Post Master General, Kolkata v. Tutu Das (Dutta) (2007) 5

SCC 317 - this was not a case relating to an Industrial

Tribunal or a Labour Court and hence distinguishable from

that in Casteribe;

iii. Satya Prakash v. State of Bihar (2010) 4 SCC 179 - in this

case also the petitions were filed for regularization in

accordance with para 53 of the judgment in Umadevi. This

judgment is also as such not apposite;

iv. Gangadhar Pillai v. M/s. Siemens Ltd. JT 2006 (10) SC 265 -

this judgment is again of a date prior to the judgment in

Casteribe and purely on the basis whereof the respondent

workman in the present case is held entitled to the relief from

the Industrial Tribunal.

20. I am even otherwise of the opinion that equity and justice demands

that the award be not interfered with. The Supreme Court in Chandra

Singh v. State of Rajasthan AIR 2003 Supreme Court 2889 has held that

the High Court in exercise of jurisdiction under Article 226 of the

Constitution of India is entitled to decline relief inspite of finding the

petitioner entitled thereto, if finds the granting of relief to be inequitable

and contrary to justice. Reference in this regard may also be made to:

a. Tahera Khatoon v. Salambin Mohammad (1999) 2 SCC 635;

b. ONGC Ltd. v. Sendhabhai Vastram Patel (2005) 6 SCC 454;

c. Filmistan Exhibitors Ltd. v. NCT, Delhi 131 (2006) DLT

648 &

d. Babu Ram Sagar v. Presiding Officer, Labour Court

(2007) I LLJ 930 (Del).

21. The respondent workman herein began his career with the

petitioner employer and now when he must be nearing the end of his

career, cannot be told to look for employment elsewhere.

22. The question however still remains whether the respondent

workman is entitled to be regularized w.e.f. 1st April, 1986 as awarded

by the Industrial Tribunal. The claim of the respondent workman was of

initial appointment in April, 1986 and thus the question of the

respondent workman being entitled to regularization w.e.f. that date

itself does not arise. There is nothing to show that the respondent

workman prior to the year 1986 raised any demand or claim for

regularization. The Industrial Tribunal while answering the said

reference could not have directed regularization from any date prior to

the award. The Supreme Court in Union of India v. Sheela Rani (2007)

15 SCC 230 has held that there could be no retrospective regularization.

Hence the award calls for modification only to the extent it directs