Mcd vs Tarawati
2012 Latest Caselaw 4875 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+    W.P. (C) No. 9433/2009 and CM APPL No. 7296/2009 (stay)

%                                         Reserved on: 9th August, 2012
                                          Decided on: 21st August, 2012


MCD                                                       ..... Petitioner
                          Through:     Ms. Saroj Bidawat, Advocate.

                    Versus

TARAWATI                                                   ..... Respondent

                          Through:     None.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present petition, the Petitioner assails the award passed by the

Industrial Tribunal No.1, Room No.2, Karkardooma Courts, Delhi in ID

No.91/2007 on 20th February, 2008 whereby the Respondent was directed to

consider the case of the regularization of the workman as per policy. It was

held that the workman was entitled to 50% of wage as per Minimum Wages

Act, 1948 from the date of her initial appointment and the Respondent was

directed to pay 50% of wage to the workman as per the Minimum Wages

Act, 1948 after deducting the actual amount paid.

1. I have heard learned counsel for the Petitioner and perused the counter

affidavit filed by the Respondent.

2. The facts leading to the filing of the present petition are that the

Respondent raised a dispute which was sent for adjudication to the learned

Tribunal with the following terms of reference:

"Whether the demand for regularization of Smt. Tara Wati w/o Sh. Mahinder Singh as full time Safai Karamchari in proper pay scale from the date of her initial appointment along with consequential benefits including difference of salary is justified and if so, what directions are necessary in this respect?"

3. In the statement of the claim the Respondent stated that she was

employed with the Management on 15th February, 1985 as full time Safai

Karamchari with MCD at its Maternity Centre at Hari Nagar. At the time of

filing of the claim she was working at IEC Cell, Sector-7, Rohini and

receiving the salary from Hari Nagar Centre. Her last drawn wages was

Rs.560/- per month. She was discharging the duties of Safai Karamchari

from 9.00 a.m. to 3.00 p.m. It is further contended that her counter parts

were treated as regular employees and were being paid their salary in proper

pay scale. The Petitioner in its written statement refuted the claim of the

Respondent and stated that the Respondent was engaged as a part time Safai

Karamchari on a fixed amount of Rs. 560/- per month at maternity home. It

was stated that she worked only for four hours per day as Safai Karmachari

and cannot claim parity with full time Safai Karamchari who were engaged

as per the Recruitment Rules, were full time employees of the Management

and paid accordingly. The Respondent being part time employee was not

covered under the policy of regularization. The parties led their evidence.

The Respondent examined herself whereas the Management examined three

witnesses. The Respondent in her cross-examination admitted that she was

working part time on a consolidated salary of Rs. 560/-.

4. On considering the evidence on record the learned Tribunal observed

that the Petitioner in its written statement and oral evidence had admitted

that the Respondent was doing the duty for four hours in a day and only

regular employee gets wages as per the Minimum Wages Act who works for

eight hours. By the impugned award the learned Tribunal directed the

Petitioner to consider the case of regularization of the workman as per the

policy and also directed that the Respondent was entitled to 50% of the

wages as per the Minimum Wages Act, 1948 from the date of her initial

appointment and directed the management to pay the 50% wages after

deducting the actual amount paid.

5. As regards the direction to consider the case of the Respondent for

regularization I find no infirmity in the order passed by the learned Tribunal

as the said direction was subject to the Policy of the Petitioner itself, as the

Petitioner was otherwise bound to consider the case of the Respondent for

regularization in case she falls within the policy. As regards the payment of

50% wages as per the Minimum Wages Act, 1948 the claim of the Petitioner

is that the minimum wages are given only to daily rated employees who

work for eight hours. It is in this context that the Trial Court had directed

50% wages as per the Minimum Wages Act because it is the case of the

Petitioner itself that the Respondent was working for four hours a day, that

is, half the time. Thus, she was entitled to at least 50% wages as per the

Minimum Wages Act from the date of her initial appointment.

6. Learned counsel for the Petitioner has strenuously contended that

relief of 50% back wages was beyond the terms of reference and was also

not an issue incidental thereto, thus the impugned order is beyond

jurisdiction. Section 10(4) ID Act states:

"10. Reference of dispute to Boards, Courts or Tribunals (4) Wherein an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the tribunal or the National Tribunal, as the case may be,] shall confine its adjudication to those points and matters incidental thereto."

7. Section 10(4) ID Act permits adjudication of issues that are incidental

in nature besides consequential issues. In the present case though the issue

of entitlement of pay on regularization was a consequential issue, however

the issue of grant of appropriate pay for the period when the Respondent was

not regularized is an incidental issue. Thus, the learned Trial Court

committed no error in awarding 50% of the minimum wages to the

Respondent. I find no infirmity in the impugned award.

8. Petition and application are dismissed.

(MUKTA GUPTA) JUDGE AUGUST 21, 2012 'vn'