Delhi High Court
Kewal Kishore vs The Dy. Labour Commissioner, ... on 15 December, 2014
Author: Suresh Kait
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on 15th December, 2014
+ W.P.(C) 793/2014
KEWAL KISHORE ..... Petitioner
Represented by: Mr.Rajiv Aggarwal and
Mr.Sachin Kumar, Advocates
Versus
THE DY. LABOUR COMMISSIONER, GOVT. OF NCT OF DELHI & ANR
..... Respondents
Represented by: Ms.Zubeda Begum, Standing
Counsel, GNCTD for R-2.
Ms.Mini Pushkarna, Standing
Counsel for R-2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (ORAL)
1. Vide the present petition, the petitioner seeks mandamus directing the
respondent No.1 to take a decision on the complaint dated 31.12.2011 filed
by the petitioner under Section 2(ra) read with Section 25U of the Industrial
Disputes Act, 1948 (for short "ID Act"), to prosecute the respondent
No.2/North Delhi Municipal Corporation (for short „NDMC‟).
2. Further seeks directions by directing the respondent No.2 to
implement the award dated 20.09.2005 passed in I.D. No.23/2002 by the
Industrial Tribunal No.I, Delhi.
3. In the counter-affidavit filed by the respondent No.2/NDMC, it is
stated that the Corporation is no longer regularizing the daily wages
workers, who have been engaged/reinstated after the judgement of the Apex
Court delivered in the case titled as "The Secretary, State of Karnataka Vs.
Uma Devi & Ors. (2006) 4 SCC 1".
4. It is further stated that now there is no policy for regularization of
daily wages workers, therefore, the case of the petitioner cannot be
considered for regularization against the policy of the Corporation.
5. In para-7, it is specifically stated that since award passed by the
learned Tribunal already stands complied with, there is no occasion for the
petitioner to allege non-compliance of the said award.
6. It is pertinent to note that vide award dated 20.09.2005, the learned
Tribunal held that the petitioner/workman is entitled to reinstatement with
effect from 29.08.2000 with continuity of service and all consequential
benefits. He is also entitled to full back wages with effect from 29.08.2000
as per the Minimum Wages Act, 1948. Accordingly, the respondent
No.2/NDMC was directed to pay arrears of back wages to the
petitioner/workman and consider him for regularization, as per his seniority,
and as per the policy of the Management against the vacant post.
7. I note, the stand taken by the respondent No.2 before the learned
Tribunal was that the NDMC has its own policy of regularization for the
appointment of daily wages workers in the regular grade in a phased manner.
Whereas in the counter-affidavit filed before this Court, it is stated that there
is no regularization policy and the regularization scheme has been closed
pursuant to Uma Devi's case (supra).
8. Mr.Rajiv Agarwal, learned counsel appearing on behalf of the
petitioner states at Bar that the Safai Karamcharis appointed on 03.11.1998
on daily wages muster roll have been regularized in terms of the
regularization policy of the respondent No.2/NDMC.
9. He asserted that the respondent No.2/NDMC has filed a false affidavit
just to mislead the Court.
10. Ms. Mini Pushkarna, learned counsel appearing on behalf of the
respondent No.2/NDMC sought two weeks time on 27.11.2014 to take
instructions from her client in this regard and assist the Court on the next
date of hearing. However, above named counsel has no instructions and
submits that this Court may proceed with the matter.
11. It is pertinent to note that the award dated 20.09.2005 passed by the
learned Tribunal was challenged by the respondent No.2 vide W.P.(C) No.
19148/2006, which was dismissed by the Co-ordinate Bench of this Court
vide its order dated 26.08.2011.
12. It is an admitted case of the petitioner that the petitioner has been
reinstated in service and all back wages have been paid. Hence, the only
issue remains in this case is that the petitioner has not been considered for
regularization pursuant to direction passed by the learned Tribunal vide
impugned award dated 20.09.2005, which has attained finality.
13. The respondent No.2/North Delhi Municipal Corporation has not
complied with the award dated 20th September, 2005 for regularisation of the
petitioner/workman which has attained finality. Accordingly, the respondent
No.2/North Delhi Municipal Corporation is directed to issue a
communication to the petitioner for regularising him in service with effect
from the date his juniors were regularised within four weeks from today in
terms of award dated 20th September, 2005.
14. I hereby make it clear that if intermittently the terms and conditions of
regularisation have been changed, the respondent No.1 shall relax the same
and regularise the petitioner.
15. I further make it clear that if at present there is no vacant post with
respondent No.2, the said respondent may create one superannuary post for
the petitioner and regularise him.
16. Before parting with the judgment the complaint dated 31.12.2011
filed by the petitioner under Section 2(r)(a) read with Section 25 of the
Industrial Disputes Act, still has not been decided by the respondent No.1
and moreover the respondent No.1 has not filed affidavit pursuant to order
dated 27th November, 2014. The counsel for respondent No.1 submits that
the counter affidavit has been filed vide diary No.259038 on 12.12.2014 but
the same is not on record.
17. Accordingly, both the respondents shall pay cost of Rs. 10,000/- each
within four weeks in favour of the petitioner as the petitioner was compelled
to file the present petition.
18. In view of the above terms, the petition is allowed.
SURESH KAIT
(JUDGE)
DECEMBER 15, 2014
mb/sb
