M.C.D. vs Sh. Bhanwar Singh
2011 Latest Caselaw 1542 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of decision: 17th March, 2011
+                       W.P.(C) 4231/2002
         MCD.                                            ..... Petitioner
                      Through: Ms. Amita Gupta with Mr. Rahat
                                 Bansal & Ms. Pooja Sharma,
                                 Advocates.
                             versus
         SH. BHANWAR SINGH & ANR.                  ..... Respondents
                      Through: Mr. Anuj Aggarwal, Advocate.
                              AND
+                      W.P.(C) 5810/2004
         M.C.D.                                         ..... Petitioner
                      Through: Ms. Amita Gupta with Mr. Rahat
                                 Bansal & Ms. Pooja Sharma,
                                 Advocates.
                             versus
         SH. BHANWAR SINGH                           ..... Respondent
                      Through: Mr. Anuj Aggarwal, Advocate.
                              AND
+                                       W.P.(C) 5822/2004
         M.C.D.                                                              ..... Petitioner
                                       Through:            Ms. Amita Gupta with Mr. Rahat
                                                           Bansal & Ms. Pooja Sharma,
                                                           Advocates.
                                                     versus
         SH. BHANWAR SINGH                                                    ..... Respondent
                     Through:                              Mr. Anuj Aggarwal, Advocate.



W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004
                                                                                     Page 1 of 15
 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 three petitions though impugn three separate awards/order of the

Industrial Tribunal but all between the employer MCD and its same

employee/workman.

2. The workman on 8th October, 1996 filed a complaint with the

Industrial Tribunal under Section 33A of the Industrial Tribunal Act, 1947

of the terms of his employment having been changed during the pendency

of a general dispute between the employer MCD and the Chowkidar,

Beldar, Bullockmen, Bhishties, Coolies, Machinemen, Hedgemen, Garden

Chaudhary etc. employed with it. The terms of employment were alleged

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

to have been changed by his transfer from Shahdara (North) Zone where he

was then working to the Headquarters (Horticulture Deptt.).

3. The first reference of the dispute between the employer MCD and

the respondent workman was made on 7 th October, 1997 of the following

disputes:-

"Whether the transfer of Sh. Bhanwar Singh from Shahdara (North) to Head Quarter (Horticulture Deptt.) made by the management vide order dated 2nd August, 1996 is illegal and/or malafide and if so, to what relief is he entitled and what directions are necessary in this respect?"

4. Since thereafter another reference dated 26 th December, 1997 was

made as under:-

"1. Whether Shri Bhanwar Singh is entitled to be regularized on the post of Mali w.e.f. 1978 instead of 1.4.88 in proper pay scale and whether he is entitled to wages in proper pay scale as given to regular employees for his muster roll employment and if so, what directions are necessary in this respect?"

"2. Whether Shri Bhanwar Singh is entitled to wages of Garden Chaudhary for the period since 3.12.88 and if so, what directions are necessary in this respect?"

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

5. The first of the aforesaid three matters to be decided was the award

dated 10th October, 2001 in the reference in para 3 aforesaid with respect to

the transfer of the workman. The Industrial Tribunal held the transfer to be

illegal for the reason of the same having been effected owing to the

workman having misbehaved with his superior and thus being punitive and

without affording any opportunity of hearing to the workman. The

Industrial Tribunal further held that the workman had not been allowed to

resume duties in the transferred office also and hence held the workman

entitled to payment of arrears of back wages for the entire period till the

date of resuming duties at Shahdara (North) Zone. Aggrieved therefrom

W.P.(C) No.4231/2002 has been filed. Vide interim order dated 17 th

September, 2002 the operation of the award for payment of arrears of back

wages for the entire period from the order of transfer till the date of

resuming duties was stayed. However the counsel for the workman informs

that prior to the said interim order, the workman had executed the said

award and has recovered back wages from the date of order of transfer till

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

the year 2004. The counsel for the employer MCD has no instructions in

this regard. However since the counsel for the workman states that the said

monies have been recovered, the question of the workman being entitled to

recover the same again will not arise.

6. The reference dated 26th December, 1997 as mentioned in para 4

above was decided vide award dated 2nd April, 2003. The Industrial

Tribunal though did not hold the workman entitled to the relief of

regularization on the post of Mali w.e.f. 1st March, 1978, nevertheless held

the workman entitled to wages equal to regular Malis w.e.f. 1st March,

1978 till the date of his regularization i.e. up to 31st March, 1988 but

without any increments. The workman was also held entitled to receive the

wages of regular Garden Chaudhary in the proper pay scale w.e.f. 3rd

December, 1988. Aggrieved therefrom W.P.(C) No.5810/2004 has been

filed. Vide interim order dated 20th April, 2004 the operation of the said

award was also stayed. However the counsel for the workman again

informs that the entire amount due under the said award has also been

already received by the workman. The counsel for the employer MCD has W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

no instructions in this regard. However as aforesaid, in view of the said

statement of the counsel for the workman, the occasion for recovery now

of the said amount also shall not arise.

7. The complaint under Section 33A mentioned in para 3 above was

decided by the Industrial Tribunal on 2 nd April, 2003. In view of the

awards aforesaid, no further order was made on the said complaint.

8. During the pendency of the present proceedings and as recorded in

order dated 18th November, 2005 in W.P.(C) No.5810/2004, the workman

stated that without prejudice to his rights and contentions he was willing to

join back duties with the employer MCD either as a Mali or as a Garden

Chaudhary. The employer MCD offered to take back the workman, again

without prejudice to its rights and contentions, as a Mali only. It was

accordingly directed that the workman will join duties with the employer

MCD w.e.f. 24th November, 2005 as a Mali. It is informed that the

workman has joined duties and has been working since then with the

employer MCD. The counsel for the workman of course contends that as

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

before, the work as of a Garden Chaudhary is being taken from the

workman though emoluments as of a Mali only are being paid. It is further

stated that the emoluments from 2004 till November, 2005 have not been

received.

9. In view of the aforesaid position, the question, besides as to the

validity of the two awards aforesaid, which arises is as to whether in the

event of the employer MCD succeeding, the respondent workman would

be liable to refund the monies already recovered and as to whether the

workman is to hereafter continue with the employer MCD as a Mali or as a

Garden Chaudhary under the award aforesaid.

10. The counsel for the workman invites attention to paras 36 to 38 of

Yogeshwar Prasad v. National Institute, Education Planning &

Administration 2010(11) SCALE 379 to contend that the amounts already

recovered cannot be directed to be refunded. However the said judgment is

not found to be laying down any such principle. The Apex Court in the

judgment aforesaid including in the judgments referred therein held that

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

the amounts were not to be refunded for the reason that the payment

thereof was not attributable to the employee from whom they were sought

to be recovered back. In each of the cases what was observed was that the

excess payment was owing to no fault of the employee. Faced with the

same, the counsel for the workman invites attention to para 40 of the same

judgment further stating that where the payment was not attributable to

misrepresentation or fraud by the employee it could not be refunded. The

said paragraph would also not come to the rescue of the workman. The

principles of restitution would apply. The payments recovered by the

workman in the present case are in execution of the award and if the said

award were to be interfered with, the workman would certainly be liable to

restitute the amounts recovered under the award.

11. The first question which arises is, whether the Industrial Tribunal

was justified in, though not holding the workman entitled to regularization

on the post of Mali w.e.f. 1 st March, 1978, directing the MCD to pay to

him wages equivalent to a regular Mali with effect from that date.

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

12. In my opinion, the said award cannot be justified. The Supreme

Court in Indian Drug and Pharmaceuticals Limited Vs. Workman,

Indian Drugs and Pharmaceuticals Limited (2007) 1 SCC 408 reiterated

that a daily rated or casual worker is only a temporary employee and that a

temporary employee has no right to post and is distinct from a permanent

employee who has a right to the post. It was held that it is only a

permanent employee who has a right to continue in service till the age of

superannuation unless dismissed or removed after an inquiry or his service

is terminated for some other valid reasons; a temporary employee has no

age of superannuation because he has no right to the post at all. It was

reiterated that no direction can be given that a daily wage employee should

be paid salary of a regular employee. Such awards of the Labour Courts

on the basis of emotions and sympathies were held to be based on no legal

principle.

13. The award of the Industrial Tribunal to the said extent is therefore

clearly illegal and the monies realized by the petitioner in enforcement of

the said award cannot be said to be legally due from the petitioner MCD to W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

the respondent workman and on the principal of restitution the respondent

workman would be liable to refund the same.

14. Need after such a long lapse of time is not felt to deal with the award

in so far as with respect to the transfer of the workman from Shahdara

(North) Zone to Headquarters (Horticulture Deptt.). It is informed that the

workman upon re-joining pursuant to the order dated 18th November, 2005

(supra) is since working at Shahdara (North) Zone only. The counsel for

the respondent workman agrees that if the employer MCD in accordance

with its policy / rules on transfer hereafter desires to transfer the

respondent workman, it would be entitled to do so.

15. However the question arises, whether the Industrial Tribunal was

justified in directing the MCD to pay to the workman the wages from the

date of order of transfer till the date of rejoining. The said direction was

premised on factual finding that the MCD did not permit the workman,

neither at the place from where transferred nor at the place to which he was

transferred, to work. Such payment was also sought to be justified owing

to finding that the workman was working as Garden Chaudhary but at the W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

place of transfer was given work at a junior post of Mali which he could

not be expected to join.

16. The counsel for the employer MCD has also invited attention to the

complaint aforesaid under Section 33A of the Act preferred by the

workman where the workman had admitted that since the transfer order

was illegal he had not joined to the transferred place. It is contended that in

the light of the said admission of the workman, the finding of the Industrial

Tribunal of the workman having been refused work at the transferred place

cannot be accepted.

17. The only other question which remains for consideration is whether

the award in so far as holds the workman to be entitled in future to wages

as of a Garden Chaudhary is in accordance with law or not and calls for

any interference in these proceedings of judicial review.

18. The Industrial Tribunal has held the workman to be so entitled upon

returning a finding that the work as of a Garden Chaudhary was being

taken from the workman.

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

19. It is the contention of the counsel for the employer MCD that

Garden Chaudhary is a post and procedure for promotion/appointment

whereto has been prescribed and without the workman having been

promoted to the said post he could not be held entitled to emoluments of

the said post.

20. Per contra, the counsel for the workman relies upon para 6 of

Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma AIR

1998 SC 2909. However a perusal of the said judgment shows that what

was laid down therein was that if a person was directed to officiate on a

higher post with greater responsibilities, then even though not promoted to

the said post, would be entitled to emoluments thereof. It is nobody's case

that the workman in the present case was promoted to the higher post of

Garden Chaudhary. The only claim which the workman could have had

and/or which he could have raised was of being entitled to promotion to

the post of Garden Chaudhary. Without being so promoted, the award for

paying emoluments to a post to which he was not directed to officiate or

promoted could not have been made.

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

21. I have in WP(C) 4023/1997 titled Municipal Corporation of Delhi

Vs. Jagdish Chander dated 23rd March, 2010 dealt with the procedure for

promotion to the post of Garden Chaudhary. No such procedure was

admittedly followed in the present case. In the absence of the promotion or

any document to show that the employer MCD had directed the workman

to officiate for the said post, the award holding the workman entitled to

emoluments thereof cannot be sustained.

22. Insofar as the direction in the award dated 10 th October, 2001 for

payment to the workman of the emoluments for the period for which he

admittedly did not work owing to the transfer aforesaid, it is felt that the

finding of the Industrial Tribunal of the workman having not been

permitted to join the work be not disturbed at this stage. Nothing has been

brought on record to show that the MCD during the said period issued any

letters to the workman calling him to join work and the workman inspite

thereof absented. Even otherwise, considering the economic strata of the

society to which workman belongs, it would be unduly hard on him to now

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

refund the said amount already recovered or to allow MCD to adjust the

same out of his future emoluments.

23. I am also of the opinion that since the employer MCD did not act

promptly and did not protect itself against the execution of the award, now

after a long lapse of time it would be inequitable to direct the monies

recovered by the workman in execution of the award to be refunded or to

be adjusted in the future emoluments of the workman. However the

respondent workman shall not be entitled to any amount for the period

from 2004 till joining, as claimed to be due.

24. The petitions therefore succeed to the aforesaid extent. The award

dated 2nd April, 2003 of the Industrial Tribunal holding the petitioner

entitled to the relief of wages equivalent to a regular Mali w.e.f. 1 st March,

1978 till the date of regularization i.e. 31 st March, 1988 is set aside.

However, for the reasons aforesaid, the MCD is not found entitled to

restitution of the amount already recovered. The award dated 10th October,

2001 is however not interfered with for the reasons aforesaid.

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004

Accordingly, it is directed that the workman w.e.f. 24 th November, 2005

shall be entitled to emoluments as of a Mali only and not as of the Garden

Chaudhary. The petitions are disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MARCH 17th , 2011 Pp/M

W.P.(C) 4231/2002, W.P.(C) 5810/2004 & W.P.(C) 5822/2004