Delhi High Court

Municipal Corporationof Delhi vs Ram Kishan on 13 May, 2011

Author: Rajiv Sahai Endlaw

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                  Date of decision: 13th May, 2011

+                                              W.P.(C) 11346/2009

          MUNICIPAL CORPORATIONOF DELHI            ..... Petitioner
                      Through: Ms. Saroj Bidawat, Advocate

                                                      Versus
          RAM KISHAN                                                                        ..... Respondent
                                         Through:            None.

                                                        AND

          W.P.(C) Nos.11366/2009,11369/2009, 11599/2009, 11602/2009,
          11612/2009, 11623/2009, 8714/2010, 8716/2010, 8717/2010 &
          48/2011


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?




W.P.(C) 11346, 11366, 11369, 11599, 11602, 11612, 11623/2009, 8714, 8716, 8717/2010 & 48/2011       Page 1 of 8
 RAJIV SAHAI ENDLAW, J.

1. These petitions are taken up together for consideration being against

identical awards of the same Industrial Adjudicator on identical reference.

Notice of each of the petition was issued and the respondents served. The

presence of the counsel for the respondents is recorded in a number of

petitions and counter affidavits have also been filed by the respondents in a

number of petitions. All the writ petitions were listed before this Bench on

27th April, 2011 when none appeared for the respondent workmen. The

contention of the counsel for the petitioner MCD was noted and the matter

adjourned to 4th May, 2011 with direction for listing with notation in the

cause list of 'Notice of Default' to counsel for the respondent workmen.

Inspite of matters being so listed on 4th May, 2011, none appeared for the

respondent workmen on that day also and the hearing was adjourned for

today. Today also none has appeared for the respondent workmen. The

respondent workmen are proceeded against ex parte. The counsel for the

petitioner has been heard and the counter affidavits filed by the respondent

workmen in some of the petitions have been perused.

2. The reference to the Industrial Adjudicator was as follows:

"Whether the demand for overtime wages over and above his entitlement as per Circular No.D/Edu-IV/HQ/97/1568 dated 19.03.1997 of MCD for working on weekly holidays gazetted holidays and casual leave period to Sh. Ram Kishan S/o Late Sh. Prithi Singh is justified and if so from which date and what directions are necessary in this respect?"

3. Each of the respondent workmen is working as a Chowkidar in

Municipal Schools. It was the case of the respondent workmen before the

Industrial Adjudicator that they were, though liable to discharge duty of

eight hours only every day but were on duty 24 hours and not being paid

any overtime for the extra work and not even being given any holidays

notified from time to time; that they were entitled to overtime wages for 16

hours extra duty every day from the date of initial appointment onwards.

The petitioner MCD contested the claim of the respondent workmen by

pleading that vide decision dated 15th March, 1997 published in the

Circular dated 19th March, 1997 (supra), the Chowkidars in Municipal

Schools were entitled to overtime allowances of the maximum of 50 hours

every month; that the normal duty hours of the Chowkidar were 10 hours a

day and they were entitled to 24 hours rest in a fortnight; that no overtime

allowance would be admissible for their working on Sunday and holidays

but compensatory leave would be granted in lieu thereof; that in

accordance with the decision aforesaid each of the respondent workmen

was receiving `625/- per month as over time allowance.

4. The Industrial Adjudicator has held that from the Circular dated 19 th

March, 1997, it stood proved that the Chowkidars were entitled to overtime

allowance subject to the maximum of 50 hours in a month; that though the

petitioner MCD claimed to be paying `625/- per month against the said

overtime allowance of 50 hours in a month but without disclosing its basis

of calculation; that for up to the maximum of 50 hours of overtime in a

month as per the Circular aforesaid, overtime charges were to be

calculated/computed at the prevalent basic pay of the respondent workmen

with effect from 1st January, 1997.

5. The Industrial Adjudicator accordingly directed the petitioner MCD

to compute the overtime charges for 50 hours every month on the basic pay

of the workmen and to pay the arrears, if any, so due towards the

respondent workmen after excluding the amount already paid to the

respondent workmen till date. MCD was also directed to give the

workmen the statutory holidays and compensatory leave as per Circular

dated 19th March, 2007.

6. The counsel for the petitioner has rightly urged that while the

reference was to adjudicate the claim of the respondent workmen for

overtime wages over and above the entitlement under Circular dated 19 th

March, 1997 but the Industrial Adjudicator has instead of deciding whether

the respondent workmen were performing the overtime over and above 50

hours in a month and if so at what rate they should be paid therefor, has

made the award of the amount payable for the said 50 hours of overtime. It

is contended that no dispute as to the rate of overtime as per the Circular

aforesaid was referred for adjudication and thus the award is beyond

reference and liable to be set aside. Reliance in this regard is placed on:

(i) State Bank of Bikaner & Jaipur Vs. Om Prakash Sharma (2006) 5 SCC 123.

(ii) Raj Kumar Jaiswal Vs. Rangi International Pvt. Ltd. 2009 (113) DRJ 620.

(iii) Delhi Transport Corporation Vs. Raj Pal 132 (2006) DLT

each laying down that the award of the Industrial Adjudicator

beyond reference is liable to be set aside in exercise of powers of judicial

review.

7. The respondent workmen in the counter affidavits filed have not

denied the aforesaid plea, though have justified the payment of overtime

wages to which they are entitled to as per the Circular also, at the rate

awarded by the Industrial Adjudicator.

8. There is merit in the contention of the petitioner MCD. The dispute

even if any as to the rate of overtime wages to which the respondent

workmen were entitled to as per the Circular dated 19 th March, 1997 was

not referred for adjudication. The Industrial Adjudicator has no inherent

power and acquires jurisdiction to adjudicate only what was referred to

him. As aforesaid, what has been answered was not referred and what has

been referred has not been answered.

9. The award of the Industrial Adjudicator impugned in these petitions

thus cannot be sustained and have to be necessarily set aside and are

hereby quashed. However, in the absence of any material / finding on

record, this Court is incapable of modifying the award. The matters thus

have to be remanded to the Industrial Adjudicator for adjudication of the

reference. It is clarified that the Industrial Adjudicator is required to in the

reference answer the following questions:

(i) Whether the respondent workmen are entitled to wages /

emoluments for overtime over and above 50 hours in a month

and if so to what extent and at what rate.