Delhi High Court
Anil Kumar Sheel vs Asst. Labour Commissioner & Anr. on 15 December, 2014
Author: Suresh Kait
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: December 15, 2014
+ W.P.(C) 7317/2014
ANIL KUMAR SHEEL Petitioner
Represented by: Mr. Rajiv Agarwal and
Mr. Sachin Sharma,
Advocates.
ASST. LABOUR COMMISSIONER & ANR. ..... Respondents
Represented by: Mr.V.K.Tandon and Mr. Yogesh
Saini, Advocates for Respondent
No.1.
Mr. Parvinder Chauhan,
Advocate for Respondent No.2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present petition, the petitioner seeks directions thereby
directing the respondent No.2 to implement the award dated
20.09.2006 passed in I.D. No. 41/06 (Old I.D. No. 44/01) by the
Industrial Tribunal No.I, New Delhi.
2. Mr. Rajiv Agarwal, learned counsel appearing on behalf of the
petitioner submitted that petitioner joined the respondent No.2 as LDC
w.e.f. 20.10.1995 on monthly paid/muster roll worker and accordingly
paid wages as fixed and revised from time to time under the Minimum
Wages Act, 1948. The services of the petitioner were terminated in the
month of June, 1997. Being aggrieved, the petitioner raised an
industrial dispute, which was decided vide award dated 20.09.2006,
whereby, the petitioner was held entitled to reinstatement in service
with effect from June, 1997, with 50% of the back wages as per the
Minimum Wages Act, 1948, with all consequential benefits and
continuity of service. However, the said award has not been
implemented in its letter and spirit.
3. Accordingly, the petitioner made a legal demand notice dated
26.01.2007 for implementation of the award. Neither any reply was
sent nor award was implemented by the respondent No.2. Thereafter,
the petitioner made complaint dated 27.12.2012 under Section 2(ra)
read with Item No. 13 of Schedule V of the Industrial Disputes Act,
1947, (for short 'the Act'), punishable under Section 25U of the Act
with the respondent No.1. However, till date neither the award has
been implemented nor the respondent No.2 has filed any reply to the
aforesaid complaint though a considerable period has already been
lapsed since passing of the said award dated 20.09.2006.
4. Mr.Agarwal further submitted that the respondent No.1 has
failed to appreciate that this Court in case of Vinay Kumar Vs. Govt. of
NCT, 1996 (I) LLJ Page 698, held that failure to implement the award
obliges the Government to decide a complaint filed by a workman
under the Industrial Disputes Act.
5. Learned counsel for the petitioner has relied upon a judgment of
this Court in the case of Municipal Corporation of Delhi Vs. Gauri
Shankar and Ors. 1999 V AD (Delhi), 905, wherein it was held that
there is a scheme of regularization according to which such casual
workers are to be regularized as per their seniority as and when post
becomes available.
6. Mr. Agarwal submitted that the respondent admitted that there is
a phased manner programme policy of regularization with the
Management, whereby the daily workers are being regularized as per
their seniority. This fact has been recorded in Para 19 of the impugned
award. Accordingly, the learned Tribunal directed the
respondent/Management to consider the case of the
petitioner/workman for regularization with effect from the date when
his counterparts, appointed in the year 1995, were regularized.
7. On the other hand, Mr. Parvinder Chauhan, learned counsel
appearing on behalf of the respondent No.2 submitted that as far as the
regularization of the petitioner to the post of LDC is concerned,
pursuant to the award, the petitioner was to be considered in terms of
the policy for regularization of the work charged, staff and daily wage
LDCs, which was approved by the Additional Commissioner of the
respondent No.2 vide decision No.5366/GW/Cop. Dated 02.07.1996.
In terms of the said decision, subject to other conditions of the
Recruitment Rules, the candidate is required to qualify the
departmental test.
8. Further submitted that as per the Recruitment Rules, for the post
of LDC, a candidate should have passed Matriculation examination
with aggregate 60% marks or equivalent from the recognized Board or
should have passed Graduation, at least with 2nd Division, from a
recognized University or equivalent and should know typing at the
speed of 30 WPM in English or 25 WPM in Hindi. However, the
petitioner had obtained less than 60% marks in the Matriculation Exam
and has not completed his Graduation. Hence, the petitioner stood
disqualified from being considered for regularization as he did not
meet the eligibility criteria as per the Recruitment Rules. However,
with effect from 20.09.2013, the Recruitment Rules for the post of
LDC stands modified and the petitioner, now, qualifies the educational
qualification in as much as he has passed 12th Class. In view of the
above, as and when, a departmental test is conducted, the petitioner
shall be allowed to appear in the exam and the regularization of the
petitioner would be subject to success in the said exam.
9. To strengthen his case, learned counsel for the respondent No.2
has relied upon a case of State of Orissa & Ors. Vs. Prasana Kumar
Sahoo, (2007) 15 SCC 129, wherein the Apex Court held as under:-
"14. The circular letter dated 21.3.1995 even does not
purport to lay a policy decision relating to regularisation
or absorption of the census employees. It only provided
for relaxation of age. Such relaxation was also subject to
strict compliance of the recruitment rules. If by reason of
some misconception or otherwise, the Tribunal had
granted some relief in favour of some census employees,
the same by itself, in our opinion, would not confer any
legal right upon a person for being absorbed in State
services without compliance of the mandatory provisions
of the recruitment rules and the constitutional scheme
adumbrated under Article 16 of the Constitution of
India."
10. Learned counsel submitted that if by reason of some
misconception, the learned Tribunal had granted some relief in favour
of the petitioner, the same by itself would not confer any legal right for
being regularization the petitioner without complying with the
mandatory provisions of the Recruitment Rules.
11. Learned counsel further submitted that the award had been
implemented qua the reinstatement and payment of back wages and
further steps are underway for regularization.
12. I have heard the learned counsel for the parties.
13. Vide the award dated 20.09.2006, the learned Industrial Tribunal
directed the respondent No.2 to consider the case of the
petitioner/workman for regularization with effect from the date when
his counter-parts, appointed in the year 1995, were regularised.
However, the petitioner has failed to establish that any of the workman,
who was appointed in the year 1995, has been regularized without
observing the Recruitment Rules, as have been relied upon by the
respondents. Moreover, learned counsel for the respondent No.2 has
stated that as and when the similarly situated workmen will be
regularized, the case of the petitioner shall also be considered for the
same. Therefore, I am not inclined to pass any directions thereto.
14. In view of the facts recorded above, the instant petition is
dismissed with no order as to costs. Pending CM is dismissed as
infructuous.
SURESH KAIT
(JUDGE)
DECEMBER 15, 2014
Sb/jg
