Delhi Jal Board vs P.O. And Kailash Bihari Lal
2012 Latest Caselaw 3900 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                     W.P. (C) 650/2003


+                          Date of Decision: 5th July, 2012

#      DELHI JAL BOARD                  ...Petitioner
!           Through:  Mr. Arvind Nayar & Mr. Zeyaul
                      Haque, Advocates

                            Versus

$      P.O. AND KAILASH BIHARI LAL ...Respondents
              Through:  Mr. Anuj Aggarwal., Advocate

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                       JUDGMENT

P.K.BHASIN, J:

By way of this writ petition the petitioner has challenged the award passed by the Industrial Tribunal in ID No. 64/1992 whereby the respondent no.2 -workman was granted the relief of regularization as a Lower Division Clerk (LDC) with effect from 13.04.1982 with all consequential monetary benefits.

2. Briefly stated the facts of the case are that the respondent no. 2-workman was employed with the petitioner as L.D.C. in April, 1982 on muster roll basis and he continued to work as such for years and when he was not regularized he had approached the labour authorities for his regularization in the year 1991. Since no settlement could be arrived at during conciliation proceedings, the dispute was referred for adjudication to the Industrial Tribunal vide Reference order dated 1st July, 1992 with the following term of reference:-

"Whether Shri Kailash Bihari Lal is entitled to be regularized as L.D.C. and if so, from which date and what directions are necessary in this respect?"

3. The respondent no.2-workman filed his statement of claim claiming his non-regularization as L.D.C. from April, 1982 to be illegal and unjustified. He also claimed that he had passed the Departmental written test in 1986.

4. The petitioner-management filed a written statement denying the allegations made by the workman in his statement of claim and pleaded that he had failed in the typing test and further that even otherwise at the time of his appointment he was over age. The management, however,

had not disputed the respondent-workman was working as LDC on muster roll basis from 13.04.1982 onwards.

5. Following issues were framed by the Industrial Tribunal for trial:-

i. Whether the reference is bad in law and without jurisdiction?

ii. Whether the cause of the workman has been properly espoused?

iii. As per terms of reference.

6. Thereafter evidence was adduced from both sides and after examining the evidence adduced by the parties the Industrial Tribunal vide its award under challenge came to the conclusion that the workman was entitled to be regularized as LDC w.e.f. 13.04.82 with all the consequential monetary benefits and the management was accordingly directed to regularize the respondent-workman w.e.f. 13.4.82.

7. Aggrieved by the award of the Industrial Tribunal the present writ petition was filed by the petitioner-management.

8. Learned Counsel of the petitioner, during the course of the arguments had pointed out that the management had been giving opportunities to the muster roll LDCs to become

permanent by appearing in written and typing tests and the respondent had also taken the chance and had appeared as well as cleared the written and typing tests in the year 1993 and then he was regularized as LDC w.e.f. 22.6.1993. Therefore, counsel further submitted, the impugned award giving the relief of regularization from the date of his initial appointment cannot be sustained.

9. Learned counsel of the respondent no.2-workman, on the other hand, supported the impugned award and argued that the respondent no. 2-workman had been performing his duties regularly as LDC w.e.f. 13.4.82 and since there was no justification for the management to continue him as a muster roll worker for years he was rightly ordered to be regularized w.e.f. 13.4.1982 by the Tribunal. In support of this submission learned counsel for the respondent-workman also cited two judgments of the Supreme Court reported as "Maharshtra State Road Transport Corporation and Another vs. Casteribe Rajya Parivhahan Karamchari Sanghatana ", (2009) 8 SCC 556 and "Bhagwati Prasad vs. Delhi State Mineral Development Corporation", (1990) 1 SCC 361. Learned counsel, however, accepted the position that w.e.f. 22.06.1993 the workman was regularized after he

had cleared the written and typing tests. It was also admitted that the initial appointment of the respondent-workman was not as per the recruitment rules but it was maintained that since he was performing the duties of LDC since 13.4.1982 he was rightly ordered to be regularized from that date by the Tribunal.

10. A perusal of the impugned award dated 1 st May, 2001 shows that the Tribunal was informed during the trial that the respondent-workman had been regularized with effect from 22nd June, 1993 after he had cleared the written and typing tests. However, despite that the Tribunal gave the relief of regularization to the respondent-workman with effect from his initial appointment on muster roll basis as LDC i.e. 13 th April, 1982 by observing that since he was working as LDC from 13th April, 1982 he was entitled to be regularized from that date. In my view, this reasoning of the Tribunal is wholly unsustainable in view of the fact that the respondent- workman himself had accepted the position that he had to clear the written and typing tests before he could be regularized by appearing in the tests held by the management and he had accepted also his regularization from 22 nd June, 1993. He was not entitled to be regularized from 13 th April,

1982 also for the reason that he had raised the dispute only in the year 1991. Since in the present case the respondent- workman had been regularized with effect from 22 nd June, 1993 the Tribunal should have closed the matter by observing that since he had already been regularized by the management with effect from 22nd June, 1993 he was not entitled to any further relief. In case the award of the industrial Tribunal is upheld that would mean that any person who gets entry into any Government Department as a daily wager he would automatically become entitled to be made permanent from the date of initial appointment after some years and in that way his illegal/irregular entry into a Government Department, like the present petitioner, would get legalized. That is not permissible in law. In none of the judgments cited by the counsel for the respondent-workman it was held that a daily wager would become entitled to be regularized after having worked as such for years from the date of initial appointment though it was held that the Tribunal can order regularization of a daily wage workman if his continuation as a daily wager for years amounts to unfair labour practice by the employer.

11. Therefore, the impugned award of the Industrial Tribunal is set aside and it is ordered that the respondent- workman's regularization as LDC would take effect only from 22nd June, 1993 from which date the petitioner- management itself had regularized him after he had cleared the written and typing tests for the said post. This writ petition stands disposed of accordingly.

P.K. BHASIN, J

JULY 05, 2012