Delhi High Court
Mcd vs Shankar & Anr. on 17 April, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P.(C) 1309/2000
+ Date of Decision: 17th April, 2012
# M.C.D. ....Petitioner
! Through: Ms. Amita Gupta, Advocate
Versus
$ SHANKAR & ANR. ...Respondents
Through: None.
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J: (ORAL)
The petitioner-management is aggrieved by the Award dated
24th May, 1999 passed by the Industrial Tribunal while declining the
relief of regularization as a Garden Chaudhary to the respondent no. 1-
workman direct the petitioner-management to pay him wages which
are payable to a Garden Chaudhary from 5th December, 1986 till the
time he had performed the duties of a Garden Chaudhary.
2. The relevant facts as pleaded by the respondent no. 1-workman
are that he was employed with petitioner-management as a Mali in the
year 1960 and from 5th December, 1986 the officials of the
Horticulture department had assigned him the duties of a Garden
Chaudhary and ever since then he was performing the duties of that
post. He sought his regularization as a Garden Chaudhary but since the
management did not concede to that demand he approached the labour
Authorities and in due course the appropriate Government referred his
claim of regularization for adjudication to the Industrial Tribunal. The
term of the reference was as under:-
"Whether Shri Shankar is entitled to be regularized as
Garden Choudhary and if so, since when and what directions
are necessary in this respect?"
3. Before the Industrial Tribunal the respondent no. 1-workman in
his statement of claim had claimed that he was performing the duties
of a Garden Chaudhary from 5th December, 1986 onwards and
therefore, he was entitled to be regularized as a Garden Chaudhary.
4. The petitioner-management had contested the claim of the
respondent no. 1-workman inter alia on the ground that he could not
be regularized as a Garden Chaudhary since he did not possess the
requisite qualifications prescribed for that post and also because he
had never performed the duties of a Garden Chaudhary.
5. After filing its written statement, the petitioner-management
stopped participating in the proceedings before the Industrial Tribunal
and the Industrial Tribunal accepting the unchallenged testimony of
the respondent no. 1-workman passed an Award directing the
petitioner-management to pay to him the salary payable to a Garden
Chaudhary from 5th December, 1986 till the time he had performed the
duties as a Garden Chaudhary but the relief of regularization claimed
by him was declined.
6. Feeling aggrieved, this writ petition was filed by the petitioner-
management.
7. Learned counsel for the petitioner has submitted that the matter
may be remanded back to the Industrial Tribunal for fresh trial after
giving an opportunity to the petitioner-management to adduce
evidence in support of its defence. It was also contended that in any
case, since admittedly the respondent no. 1-workman did not possess
the prescribed qualifications for the post of Garden Chaudhary he was
not entitled even to the salary payable to a Garden Chaudhary
irrespective of the fact that he had performed the duties of a Garden
Chaudhary as the Industrial Tribunal has found in his favour though
the petitioner's case was that he had never been assigned the duties of
a Garden Chaudhary.
8. The respondent no. 1-workman has not been appearing in the
matter despite service of notice on him.
9. After having given my thoughtful consideration to the
submissions of the learned counsel for the petitioner-management, I
am of the view that there is no merit in this writ petition and the same
is liable to be dismissed. The management itself had chosen not to
contest the claim of the respondent no. 1-workman to the effect that he
had been performing the duties of a Garden Chaudhary from 5th
December, 1986 onwards. This Court has also been granting the relief
of payment of wages to such employees who have been performing
the duties of a higher post though not promoted formally and for
granting that relief, the question whether the concerned workman
possesses requisite qualifications for that post or not has not been
considered to be of any relevance.
10. As far as the submission made by the learned counsel for the
petitioner-management that the matter should be remanded back for
giving an opportunity to it for contesting the case on merits is
concerned, the same also cannot be accepted for the reason that
management itself had chosen not to approach the Industrial Tribunal
with any application for setting aside the ex-parte proceedings and
Industrial Tribunal has also observed in the impugned Award that the
management had not even sought setting aside of the ex-parte
proceedings ordered against it.
11. This writ petition is, therefore, dismissed.
P.K. BHASIN, J
APRIL 17, 2012/pg
