Delhi High Court
M.C.D. vs Abid Ali on 31 May, 2011
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No.126/2010 & CM Nos.3316/10, 3318/10
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Abid Ali .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
WITH
LPA No.129/2010 & CM Nos.3366/10, 3368/10
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Jagdish .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
LPA No.204/2010 & CM No.5415/10
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Tajaduke Khan .....Respondent through
Mr. Varun Prasad, Adv.
LPA No.117/2011 & CM Nos.2004/11, 2006-08/11
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Anoop Singh .....Respondent through
LPA No.126/2010 Page 1 of 25
LPA No.118/2011 & CM Nos.2009/11, 2011-13/11
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Raj Kumar .....Respondent through
Mr. Bankey Bihari, Adv.
LPA No.119/2011 & CM Nos.2014/11, 2016-18/11
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Ramjeet .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
LPA No.120/2011 & CM Nos.2019/11, 2021-23/11
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Narain Singh .....Respondent through
LPA No.121/2011 & CM Nos.2024/11, 2026-28/11
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Ved Prakash .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
LPA No.122/2011 & CM Nos.2029/11, 2031-33/11
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
LPA No.126/2010 Page 2 of 25
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Ved Prakash .....Respondent through
LPA No.365/2011 & LPA Nos.368-377/11
Mam Baksh & Ors. .....Appellant through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
versus
M.C.D. .....Respondent through
Ms. Amita Gupta &
Mr. Praveen Kumar, Advs.
WP(C) No.7606/2002
M.C.D. .....Appellant through
Ms. Amita Gupta &
Mr. Praveen Kumar, Advs.
versus
Mahabir & Ors. .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
WP(C) No.19716-22/2005
Satpal & Ors. .....Appellant through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
versus
M.C.D. .....Respondent through
Mr. Sarabh Khanna for
Mr. Gaurang Kanth, Adv.
WP(C) No.89-95/2006
Mohd. Razak & Ors. .....Appellant through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
versus
M.C.D. .....Respondent through
Mr. Sarabh Khanna for
LPA No.126/2010 Page 3 of 25
Mr. Gaurang Kanth, Adv.
WP(C) No.19096/2006 & CM No.15856/2006
M.C.D. .....Appellant through
Ms. Saroj Bidawat, Adv.
versus
Bharat Singh .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
WP(C) No.7851/2008 & CM No.15154/2008
M.C.D. .....Appellant through
Ms. Saroj Bidawat, Adv.
versus
Abdul Gafoor .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
WP(C) No.7611/2009 & CM No.3746/2009
M.C.D. .....Appellant through
Mr. Himanshu Upadhyay,
Adv.
versus
Bhima .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
WP(C) No.1861/2010 & CM Nos.3721-22/2010
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Ram Achal .....Respondent through
Mr. Varun Prasad, Adv.
WP(C) No.1862/2010 & CM Nos.3725/2010, 3727/2010
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
LPA No.126/2010 Page 4 of 25
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Iqbal Ahmed (Carpenter) .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
WP(C) No.2202/2010 & CM No.4481/2010
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Raje Ram .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
WP(C) No.6268/2010 & CM No.12422/2010
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Kanha Ram .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
WP(C) No.167/2011 & CM No.309/2011
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Om Prakash .....Respondent through
Mr. Varun Prasad, Adv.
WP(C) No.606/2011 & CM No.1289/2011
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
LPA No.126/2010 Page 5 of 25
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Awatar Giri .....Respondent through
Mr. Varun Prasad, Adv.
WP(C) No.779/2011 & CM No.1640/2011
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Ram Singh .....Respondent through
Mr. Varun Prasad, Adv.
WP(C) No.780/2011 & CM No.1642/2011
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Mohd. Rafiq .....Respondent through
Mr. Varun Prasad, Adv.
WP(C) No.788/2011 & CM Nos.1654-55/2011
M.C.D. .....Appellant through
Mr. H.S. Phoolka, Sr. Adv.
with Ms. Mini Pushkarna &
Mr. Kanwar Faisal, Advs.
versus
Shashi Pal .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
Kalia & Mr. Ankit Lamba,
Advs.
WP(C) No.1320/2011 & CM No.2804/2011
M.C.D. .....Appellant through
Mr. Sarabh Khanna for
Mr. Gaurang Kanth, Adv.
versus
Workman Maiku .....Respondent through
Mr. Pramod Gupta, Mr. Ajit
LPA No.126/2010 Page 6 of 25
Kalia & Mr. Ankit Lamba,
Advs.
% Date of Hearing: May 20, 2011
Date of Decision: May 31, 2011
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
CM Nos.3318/10, 3368/10, 2006/11, 2011/11, 2016/11,
2021/11, 2026/11, 2031/11,
1. Delay in filing the present Appeals is condoned.
CM No.2008/11, 2012/11, 2018/11, 2022/11, 2027/11, 2033/11
2. Delay in refiling the present Appeals is condoned.
CM Nos.3722/10, 3727/10, 1655/11
3. Delay in filing the present Petitions is condoned.
LPA Nos.126/10, 129/10, 204/10, 117-22/11, 365/11, 368-77/11,
WP(C) Nos.7606/02, 19716-22/05, 89-95/06, 19096/06,
7851/08, 7611/09, 1861-62/10, 2202/10, 6268/10, 167/11,
606/11, 779-80/11, 788/11, 1320/11
4. The central dispute involved in these Appeals is whether
the concerned Workmen were entitled to be regularised in the
pay scale of ` 260-400/- and not only from 1.1.1996. The
Workmen were initially taken into the employment of the
Municipal Corporation of Delhi (MCD) on Muster Roll basis on
various dates. They were regularised with effect from 1.4.1980;
and have already been granted the scale of ` 260-400/- with
effect from 1.1.1996. The MCD contends that the Workmen,
who variously were Masons/Carpenters/Painters/Fitters,
remained at the „Entry/Junior‟ level attracting pay scale of
` 210-270 at the relevant time and did not progress to the
„Promotional/Senior‟ level in the pay scale of ` 260-350/- or
` 260-400/-. On behalf of the Workmen, it is vehemently
contended that this dichotomy is fictional and has been created
by the MCD only in defence of the illegal position which has
been adopted by them in the present litigation. The Workmen
submit that from the inception there was just a single level to
which all workmen belonged. A perusal of the Office Order
dated 12.7.1982 of the MCD supports the contention of the
Workmen inasmuch as in circa 1982 none of the Workmen were
designated as Senior or Junior, as is now sought to be
impressed upon us by learned Senior Counsel for the MCD. We
think it necessary to extract the Office Order to clarify the
position:-
The Commissioner, M.C.D. exercising the powers of the
Corporation, vide decision No.2340/DW/Corp. dated 11-6-
1982 has been pleased to approve of implementation of
award given by the Board of Arbitration (J.C.M.) revising
the pay scale of skilled workers of the following categories
from Rs.260-350 to Rs.260-400 w.e.f. 1-1-1973, notionally to
the categories of skilled workers, as stated below; in
position on or before 1-3-1973.
Sl.No. Category
1. Mason
2. Carpenter
3. Painter
4. Fitter
5. Black Smith
6. Operator
7. Moulder
8. Turner
9. Welder
10. Wireman Grade-I
11. Mechanic Setter
12. Electric Mistri
13. Electric Motor Mechanic
The actual benefit in terms of arrears of pay etc. would
accrue to them only w.e.f. 1-3-1973. This benefit may also
be given to such Municipal employees who have entered in
Municipal services after 1-3-1973.
5. The Award passed by the Presiding Officer, Industrial
Tribunal-II, Delhi, pursuant to a Reference made by the
Secretary (Labour), Government of National Capital Territory
of Delhi, has found in favour of the Workmen. It noted that the
MCD, vide Resolution 609 dated 12.7.1989, had approved the
regularisation of Muster Roll Workers engaged upto 31.3.1984.
Thereafter, the Commissioner, vide Order dated 16.2.1990, had
regularised Muster Roll Workers, such as the Workmen before
us, with effect from 1.4.1990. The Tribunal further opined that
all the Masons/Carpenters/Painters/Fitters were granted
similar pay scale of ` 3050-4590/- in the Engineering
Department as also in other Departments of the MCD. It also
noted that the MCD had granted pay scale of ` 260-400/- and
equivalent scale to Workmen in the category of Masons/
Carpenters/ Painters/ Fitters in compliance with the Orders of
various Courts and Tribunals and that there was no justification
for discrimination within their ranks. The Reference was
answered in these terms. Writ Petitions were filed from time to
time, decisions in most of which were challenged by way of
Appeals in this Court. Conflicting and contrary decisions have
been given by different Benches which underscores the wisdom
and, in fact the curial imperative, of bunching similar matters
and placing them before the same Bench. There can be no
gainsaying that one of the foremost facets of law is uniformity
in approach as well as the verdict. Whilst two Benches have
upheld the stand of the MCD, three other Benches have given
their imprimatur to the view of the Industrial Tribunal
approving thereby the stance of the Workmen.
6. Learned counsel for the Workmen has submitted that
before one particular Bench, Justice Hima Kohli, the matter
was heard and decided in the absence of the Workmen. Even
though the Workmen are responsible for this default, their
learned counsel contends that all the relevant facts were not
brought to the notice of the Bench and hence the verdict is in
favour of the MCD. In particular, it has been brought to our
notice that truncated documents have been filed by the MCD in
order to give a distorted version to the Court. It was in this
regard that our attention was attracted to the fact that in the
Appeals filed on behalf of the MCD, the complete documents
pertaining to "Item No.11 - Uniform pay scale of posts of
Masons/Carpenters/Painters/Fitters etc." has not been filed.
This deficiency or omission has been corrected by the Workmen
by filing before us the complete document. They rely on the
following page of Item No.11 which has been omitted in the
Appellants‟ rendition on pages 85 and 86 of the Appeal:-
Rectification in the pay scale in Establishment
Schedule was made:
Besides above, an Award passed in the matter of
MCD Vs. Sri Kishan was challenged in the High Court
and rectification made in the pay scale in
Establishment Schedule was placed before the Hon‟ble
Justice Geeta Mittal in Delhi High Court through Sh.
Gaurang Kanth Municipal Advocate engaged in this
matter by Ex. Engineer (Elect.)-II.
Matter was come up for hearing on 6-1-2006 but
the Hon'ble Judge was not convinced with this
amended order after expiry of 23 years and was in
view of imposing cost of Rs.50,000/- on MCD. As per
report of Ex. Engineer (Elect.)-II, matter was
withdrawn from the High Court of Delhi and after
getting the advice of DLO (HQ)/CLO, Award was
implemented.
There were number of Awards already
implemented and recently are being
implemented. Under these circumstances there is no
other alternative left with the department except to
implement the following Awards as :-
(a) Similar Awards have been implemented.
(b) No recovery from the Workman granted pay scale
of Rs.260-400 in place of Rs.210-270 through Awards
can be made at this stage.
(c) Non-implementation of Award will amount
prosecution against management.
(d) Matter for non-implementation of Award is being
heard by the Hon‟ble High Court of Delhi in the matter
of Municipal Hospital Employees Union Vs. Labour
Commissioner, GNCT and others in CWP
No.4417/1996.
(e) Commissioner, MCD has appeared in this matter
in the High Court and directions have been given for
implementation of Awards as early as possible.
Details of New Awards to be implemented :- (Grant of
pay scale Rs.260-400)
S.No. ID No. Title of the case
1. 9/2001 Sh. Om Prakash Vs MCD
2. 121/2003 Sh. Babu Lal s/o Sh. Ganga Ram Vs MCD
3. 125/2003 Sh. Mahipal S/o Sh. Umeda Vs. MCD
4. 124/2003 Sh. Mali Ram S/o Sh. Chokha Ram Vs MCD
5. 123/2003 Sh. Panna Lal S/o Sh. Ram Swaroop Vs MCD
6. 122/2003 Sh. Raghunath S/o Sh. Dayal Ram Vs MCD
7. 127/2003 Sh. Ram Kishan S/o Sh. Nanak Chand Vs MCD
8. 31/2003 Sh. Ram Swaroop S/o Sh. Rati Ram Vs MCD
9. 3/2001 Sh. Mahboob Khan Vs MCD
10. 98/2003 Sh. Wahid S/o Sh. Karimuddin Vs MCD
11. 46/2003 Sh. Rafiq Ahmed S/o Sh. Gulsher Ahmed Vs MCD
12. 34/2001 Sh. Shan Mohd. S/o Sh. Munshi Ram Vs. MCD
13. 6/2001 Sh. Budh Ram Vs. MCD
It is proposed that administrative approval for
implementation of these Awards and any Award
received in future be accorded.
Submitted please.
7. We also record that the following portion of Item No.11 is
completely illegible in the Appeal Paper Book, imparting
considerable weight to the Workmen woes that the MCD has
made a vain effort to mislead the Court:-
(ii) Resolution No.105 of the Ad hoc (Appointments,
Promotions, Disciplinary & Allied Matters) Committee
dated 12.2.2007.
Resolved that the case be routed through the Standing
Committee.
(iii) Resolution No.643 of the Standing Committee
dated 22.2.2007.
Resolved that it be recommended to the Corporation
that the proposal of the Commissioner in his letter
No.F.33/Engg./1751/C&C dated 8-1-2007, duly
forwarded by the Ad hoc (Appointments, Promotions,
Disciplinary & Allied Matters) Committee vide its
Resolution No.105 dated 12.2.2007, be approved.
8. We had summoned the Chief Law Officer of the MCD to
make clarifications on the doctoring of documents as well as to
ascertain on whose authority the present Appeals have been
filed, which are palpably contrary to the Commissioner‟s
Recommendations as well as to the decision of the MCD. The
situation is confounded for the reason that several workmen,
identically placed to those before us in these Appeals, have
been placed in the pay scale of ` 260-400/- as further
revised/increased from time to time. An ingenious explanation
has been proffered by learned Senior Counsel for the MCD.
This is that in most of the cases where similarly placed
workmen were fitted in the pay scale of ` 260-400/-, the MCD
was placed in a precarious legal position. For example, Justice
Gita Mittal, (who has eventually not passed any of these orders
appealed against before us), had expressed her intention of
imposing punitive costs on the MCD because of its
prevaricating and discriminatory action; or because the
execution proceedings had come to a critical stage; or because
senior officers of the MCD had been requested to appear in
Court so as to enable the Court to ascertain the actual stance of
the MCD. Adhocism, discrimination etc., an anathema so far as
a model employer such as the MCD is concerned, is writ large.
It is evident to us that the MCD persists on wasting and
exhausting scarce judicial time in each and every litigation
rather than assuming its responsibility of independently
arriving at a fair and legal decision.
9. We have already mentioned the argument made by
learned counsel for the Workmen that the distinction between
Senior Mason, Senior Carpenter, Senior Fitter and Senior
Painters exists on paper only, and that too relatively recently,
that is, circa 2005. Learned counsel has accentuated the fact
that not a single document exists on the judicial record
witnessing the appointment of any of the employees/workmen
as Senior or Junior Masons/Carpenters/Painters/Fitters or
promoting some Workmen to the Senior level. We are indeed
not a little surprised that the MCD has sought to correct, after
a long lapse of twenty three years, an alleged printing mistake
depicting the pay scale of Masons/Carpenters/Fitters/Printers
in the pay scale of ` 260-400/- in place of ` 210-270/-. The
absurdity of this defence, it appears from the records, is what
prompted Justice Gita Mittal to express the opinion that costs
of ` 50,000/- deserved to be imposed on the MCD in each
litigation.
10. We are of the opinion that the dichotomy of promotional
level and entry level of Masons/Carpenters/Painters/Fitters,
even if it existed on paper at the time of the
employment/regularization of the Workmen, was never
implemented by the MCD. So far as workmen before us are
concerned, there is no evidence that at the time of their
regularisation any such distinction existed amongst the
employees. In LPA No.126/2010, the MCD has sought to assail
the orders of the Hon‟ble Single Judge who had affirmed the
Award/Reference of the Presiding Officer, Industrial Tribunal-
II, Delhi. The contention is that the learned Single Judge erred
in holding that no material had been placed by the Workmen
before the Labour Court pertaining to the Recruitment Rules.
An independent, rather than the truncated reading made by
learned Senior Counsel for the MCD of the Order, makes it
clear that the learned Single Judge had noticed the absence of
any material placed by the MCD to show till what date the
Recruitment Rules remained in existence.
11. As already noted above, the stance of the MCD is that the
two categories were merged on 5.3.2007 with effect from
1.1.1996. We reiterate that there is no material on record, at
least nothing has been brought to our notice by learned Senior
Counsel for the MCD, that this categorisation was actually in
existence amongst the employees/workmen before that date,
and this division has unilaterally been devised by the MCD. In
other words, we are satisfied that the employees/workmen
were, for all intents and purposes, treated in the same manner
so far as wages are concerned, that is, as
Masons/Carpenters/Painters/Fitters.
12. Annexure R-7 pertains to Item No.2450 at pages 284-285
and is significant for two reasons - firstly because it takes
cognizance of revision of scale of pay of skilled workers in the
CPWD on the basis of an Award given by the Board of
Arbitration by which scale of pay of ` 260-400/- was granted in
lieu of ` 260-350/- and secondly for the reason that there is no
mention of the alleged „senior category/cadre‟ which was
entitled to pay scale of ` 260-400/- as against ` 210-270/-.
Annexure R-7 reads thus:-
Item No. 2450 : Revision of pay scales of skilled
workers from 260-350 to 260-400
Letter No. F.33/5888/C&C dated 19.5.1982
Whereas the skilled workers like mason, painter,
carpenter etc. still getting the pay scale of 260-350 in
the Municipal Corporation of Delhi.
Whereas the scale of pay of 26 categories of the
skilled workers has been revised to 260-400 in lieu of
260-350 on the basis of Award given by the Board of
Arbitration (JCM) w.e.f. 1.3.1973 by the Ministry of
Works and Housing.
Whereas the Ministry of Works & Housing vide its
letter No. 20/4/71-WCSII dated 5.3.1977 (copy
enclosed) has decided as special case to agree to the
revised scale of pay Rs.260-400 has been implemented
w.e.f. 1.3.1973 and
Whereas the scale of pay revised by the Central
Government from time to time are followed by the
Corporation.
This meeting of the Standing Committee,
therefore resolves that the scale of pay of 26 categories
of skilled workers in the Municipal Corporation of Delhi
be revised from 260-350 to 260-400 w.e.f. 1.3.1973.
This is a case for revision of pay scales of skilled
workers from 260-350 to 260-400. The Central PWD
vide their orders No.20/4/71-WCSII dated 2nd Feb. 1977
decided to increase the scales in view of the award
given by the Board of Arbitration (JCM).
The Engineering Department is following the
norms of CPWD/Delhi Admn./PWD and all the scales
applicable to the workers in CPWD/Delhi Admn./PWD
are being implemented in the department. There is
also an understanding with the labour unions that
whenever there is change in the scales in CPWD/Delhi
Administration/PWD they will automatically become
applicable to the workers of the Engineering
Department. This has been done from time to time
whenever such orders have taken place.
The categories involved in the Engineering
Department are:
1. MASON
2. CARPENTER
3. PAINTER
4. FITTER
5. BLACK SMITH
6. OPERATOR
7. MOULDER
8. TURNER
9. WELDER
10. WIREMAN GRADE-I
11. MECHANIC SETTER
12. ELECTRIC MISTRY
13. ELECTRIC MOTOR MECHANIC
It is, therefore, recommended that the pay scales
of the skilled workers of the Engineering Department
be revised from 260-350 to 260-400 w.e.f. 1.1.73
notionally to the said categories of skilled workers in
position on or before 1.3.73 and the actual benefit in
terms of arrears of pay etc. would accrue to them only
with effect from 1.3.1973.
C.A. has concurred in the proposal.
The case is put up to the Commissioner exercising
the powers under Section 490(2) (b) of the DMC Act,
1957 to approve the above recommendations.
(ii) Decision No.2050/Stg. Dated 22.5.1982
The proposal contained in Commissioner‟s letter
No.F33/5888/C&C dated 19.5.1982 is recommended to
the Commissioner exercising powers of the Corporation
for approval.
Item No.2450
As recommended by the Commissioner exercising
the powers of the Standing Committee vide decision
No.2059/Stg. Dated 22.5.82 the proposal contained in
Commissioner‟s letter No. F.33/5888/C&C dated
19.5.1982 is approved.
13. The argument of learned Senior Counsel for the MCD to
the effect that the Workmen have not challenged the entry level
and promotional level distinctions is obviously fallacious for the
reason that the MCD has failed altogether to produce any
evidence that such categorisation existed at the relevant time,
or was ever implemented.
14. We have already made a mention of Item No.11 which
dealt with the Commissioner‟s letter dated 8.1.2007 and has, as
Annexure-A, the letter of the Commissioner dated 12.7.1982
which fails to make any distinction between the so-called entry
level and promotional level in the category of
Masons/Carpenters/Painters/Fitters. This belies the existence
of two separate categories sought to be introduced by the MCD
much later on as a defence to the demands of the Workmen. In
Item No.11, after referring to the two said alleged categories of
senior and junior, it has specifically been noted that - "So far,
various such awards have already been implemented under
advice of CLO and some of the awards are (sic.) have also
created a disparity on pay scales of workers of the "Junior"
Category itself. Under the circumstances, it will be in the
interest of MCD, that the existing "Senior" and "Junior" grades
of the aforesaid five "Skilled" categories of the Engineering
Department are merged into one grade". Keeping in
perspective that the so-called senior and junior grades were not
implemented for twenty three previous years, reliance by the
MCD on the letter dated 9.5.2007 can be of no substance.
15. Learned Senior Counsel for the MCD has placed reliance
on an Affidavit of the Administrative Officer, Engineering MCD
dated 14.9.2004, the contents of which are reproduced for
facility of reference:-
1. That I am presently posted as Administrative
Officer, Engineering MCD, Town Hall, Delhi-6 and
therefore well conversant with facts of the case and
has been authorized to depose on behalf of the
Management, MCD.
2. That the applicant was initially engaged as D/w on
or about 1973. He was regularized as Carpenter w.e.f.
1.4.80 as per phased policy of the Corporation.
3. That the present claim has been filed after a long
delay and no reason whatsoever has been given for the
delay and therefore the present claim deserve
dismissal on this ground.
4. That the Management MCD adopts the pay scales
recommended by various pay commissions and
approved by the Corporation (Elected Body). The
concerned employee has been regularized in
accordance to the Recruitment Rules and the pay scale
recommended by the Pay Commission.
5. That the Recruitment Rules for the post of
Carpenter and for the post of Senior Carpenter are
enclosed herewith.
6. That no junior to the applicant has been regularized
before the concerned employee nor any other
employee of the same category as that of the applicant
has been given the pay scale claimed by the applicant
in the present dispute.
7. That the MCD is not bound to the recommendation
and the pay scale recommended by CPWD or any other
body or organization.
8. That Union of the applicant is not recognized by the
Management MCD nor the office bearers of the Union
are authorized to contest this case on behalf of the
applicant as claimed. The applicant is not member of
the Union and the applicant be put to strict proof of its
contents.
9. That an award was passed by this Hon‟ble Court
and the copy of the same is enclosed herewith.
10. That similarly various awards has been passed by
the Hon‟ble Court of Sh. N.K. Gupta, Presiding Officer,
Industrial Tribunal No.1, and copies of some of the
award are enclosed herewith.
16. In this regard, paragraph 2 makes it clear that the
regularisation was as per the "phased policy of the
Corporation". Paragraph 5 is a prevarication inasmuch as it
does not state from which date the Recruitment Rules were in
operation, if at all. It does not specifically state the existence or
adherence to the so-called promotional/senior level and
junior/entry level scales of pay. So far as paragraph 2 is
concerned, it should have been categorically stated that the
regularisation was carried out as per Recruitment Rules; this
would have been so stated if the Recruitment Rules were, in
fact, implemented.
17. Learned counsel for the Workmen has taken us through
the Schedule of "Establishment -1997-98" of the MCD. It has
been emphasised that this Schedule does not postulate or
contemplate the two categories or classes sought to be created
by the MCD before the Industrial Tribunal. There is no denial
that in category „C‟ carrying the pay scale of ` 950-1500/-,
which corresponds to ` 260-400/-, there is no mention of Senior
Masons/Carpenters/Fitters in the Engineering Department.
This is also the position in the Schedule of Establishment 2004-
2005 of the MCD.
18. It is indeed bewildering as to why the MCD has filed
Appeals or is resisting Appeals filed by the Workmen in the face
of their own Recommendations to the effect that - "It is
proposed that administrative approval for implementation of
these Awards and any Award received in future be accorded".
19. It is in this analysis we hold that in actual practice the
MCD did not maintain a Senior/promotional level in
contradistinction to a Junior/Entry level. Accordingly, there was
no justification for regularising Workmen/employees in the
scale of ` 210-270/-. In the event of the MCD‟s withdrawal or
grant of the higher scale of ` 260-400/- to Workmen/employees
identically placed to those before us, there is no justification for
firstly the creation of and thereafter the perpetuation of this
discriminatory practice. Obviously, this is what prevailed upon
the Secretary (Labour) to make a Reference to the Presiding
Officer, Industrial Tribunal-II, Delhi.
20. These Appeals and Writ Petitions along with pending
applications are disposed of with a direction to the MCD to
treat the Workmen/Employees as having been regularised in
the pay scale of ` 260-400/- with effect from 1.4.1980. In other
words, they will be entitled to arrears of pay and other benefits
for the period 1.4.1980 to 1.1.1996 if they were recruited by
then. As we have already noted, the MCD has already granted
all the benefits to the Workmen/Employees with effect from
1.1.1996. For removal of doubts, we have prepared this Table:
CASE NAME APPEAL NO. PETITION NO. DESIGNATION DECISION DECIDED BY
OF WORKMEN
MCD VS ABID LPA126/10 WP(C) CARPENTER DISMISSED S.N.AGGARWAL,J
ALI 11378/09
MCD VS LPA 129/10 WP(C)603/00 PAINTER DISMISSED MANMOHAN,J
JAGDISH
MCD VS RAJ LPA 118/11 WP(C)5742/08 FITTER DISMISSED S.N.AGGARWAL,J
KUMAR
MCD VS LPA 120/11 WP(C)5745/08 MASON DISMISSED S.N.AGGARWAL,J
NARAIN
SINGH
MCD VS VED LPA 121/11 WP(C)5747/08 FITTER DISMISSED S.N.AGGARWAL,J
PRAKASH
MCD VS VED LPA 122/11 WP(C)5746/08 FITTER DISMISSED S.N.AGGARWAL,J
PRAKASH
MCD VS LPA 119/11 WP(C) FITTER DISMISSED S.N.AGGARWAL,J
RAMJEET 12978/09
MCD VS LPA 117/11 WP(C)8102/09 CARPENTER DISMISSED KAILASH
ANOOP SINGH GAMBHIR,J
MCD VS LPA 204/10 WP(C)522/10 FITTER DISMISSED S.N.AGGARWAL, J
TAJADUKE
KHAN
MAM BAKSH & LPA 365/11 WP(C) 166/00 MAM BAKSH - ALLOWED HIMA KOHLI,J
ORS VS MCD CARPENTER
LPA 368/11 WP(C) 524/00 MOHD. SHARIF
- CARPENTER
LPA 369/11 WP(C) 527/00 NATHU RAM -
MASON
LPA 370/11 WP(C) 531/00 RAM KUMAR -
MASON
LPA 371/11 WP(C) 761/00 RASHID -
MASON
LPA 372/11 WP(C)2379/00 PURAN CHAND
- FITTER
LPA 373/11 WP(C)7673/00 RAZAK -
MASON
LPA 374/11 WP(C)6993/01 NANAK -
MASON
LPA 375/11 WP(C)7530/01 GANESH DASS -
FITTER
LPA 376/11 WP(C) 148/02 DEVKI NANDAN
- PAINTER
LPA 377/11 WP(C) 821/03 JAI BEER -
CARPENTER
21. The Workmen shall be entitled to costs of ` 5,000/- in each of the
Appeals and Petitions.
( VIKRAMAJIT SEN )
JUDGE
( SIDDHARTH MRIDUL )
May 31, 2011 JUDGE
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