Delhi High Court

Municipal Corporation Of Delhi vs Sh. Jai Pal And Anr. on 25 March, 2014

Author: V. Kameswar Rao

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Decided on March 25, 2014
+                            W.P.(C) 4007/2001
MUNICIPAL CORPORATION OF DELHI                             ..... Petitioner

                    Represented by:    Ms. Amita Gupta, Advocate with
                                       Mr.Ramakant Tripathi, Advocate

                    versus

SH. JAI PAL AND ANR.                                     ..... Respondents

                    Represented by:    Mr.Pramod Gupta, Advocate with
                                       Mr.Umakant Kataria, Advocate

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

CM No. 17231/2013 (for restoration)

This is an application filed by the petitioner-Municipal Corporation of Delhi seeking restoration of the writ petition, which was dismissed in default on October 04, 2013.

For the reasons stated in the application, the application is allowed. The writ petition is restored to its original number. W.P.(C) 4007/2001

1. The challenge by the Municipal Corporation of Delhi in this petition is to the award of the Industrial Tribunal dated February 23, 2000 passed in I.D. No. 56/1991 whereby the Industrial Tribunal has answered the reference made by the appropriate Government to place the respondent No. 1 ('respondent' in short) herein in the pay scale of Rs. 260-400/- with effect from April 01, 1978, revised from time to time

after holding the respondent to be entitled to be regularized as Electric Motor Driver.

2. The brief facts are, it was the case of the respondent that he was working as a 'Beldar' with the petitioner on daily wage basis with effect from 1970. While working so, he was asked by the petitioner to work as Electric Motor Driver. He would state, instead of regularizing him with effect from April 01, 1978 as Electric Motor Driver in the pay scale of Rs. 260-400/-, he has been regularized as a Beldar in the pay scale of Rs. 196-232/-, which is illegal.

3. It was the case of the petitioner that the dispute has not been properly espoused. On merit, it was pleaded by the petitioner that the respondent was regularized as Electric Beldar vide office order dated April 04, 1979 on which, he was initially appointed. According to the petitioner, the post of Electric Beldar is unskilled and the action of the petitioner, regularizing the respondent as Electric Beldar is proper.

4. Two issues were framed by the Industrial Tribunal; the first one, 'as in terms of reference' and the second, 'whether there is proper espousel'.

5. Insofar as the issue No. 2 is concerned, the same was decided in favour of the respondent. Insofar as the issue No.1 is concerned, the Industrial Tribunal on an admission made on behalf of the petitioner that the respondent was working as Electric Motor Driver from 1975, held that the respondent is entitled to be regularized as Electric Motor Driver with effect from April 01, 1978 in the pay scale of Rs. 260-400/-.

6. Ms.Amita Gupta, learned counsel appearing for the petitioner would submit that there is no admission on the part of the then Executive Engineer Mr.A.R.Chugh. According to her, the Industrial Tribunal could

not have granted a higher post to the respondent without ascertaining as to whether there are vacancies and the respondent fulfils the qualification for the said post. She would state that the respondent has since retired and he is getting pension as a Beldar.

7. On the other hand, Mr.Pramod Gupta, learned counsel appearing for the respondent would submit that the present petition is an abuse of process of law inasmuch as the respondent is very selective in challenging the similar orders passed by the Industrial Tribunal. According to him, this Court initially decided a writ petition being W.P.(C) 1373/1980 on February 04, 1987 wherein this Court has held that muster roll employees would be entitled to the regularization on point to point basis and on the posts they are working. Based on the said judgment, the respondent was regularized; unfortunately, not on the post of Electric Motor Driver but on a lower post of Beldar. According to him, it is this action of the petitioner, which has been challenged by the respondent by raising an Industrial Dispute. He would state that similar orders of the Industrial Tribunal have been implemented by the petitioner. Surprisingly, the award in this case has been challenged by way of this writ petition. He also draws my attention to the reply to the claim petition filed by the petitioner. He points out to the reply to the claim petition on merit to paras 1, 2 and 6, which are reproduced as under:

"1. That the contents of the para No. 2 are admitted that the workman worked on Electric Motor Driver on daily wager w.e.f. 1975 to 1979.

2. That the contents of para No. 3 are wrong and denied as the workman was regularised as Electric Beldar vide O.O. No. 943/EC- III/AC/Enggl./4.4.79 on which he was initially

appointed on daily wager.

XXXXX

6. The contents of para No. 5 are wrong and denied on the workman has been regularised in compliance of the order of the Hon'ble High Court dated 4.2.87 passed in the writ petition No. 1373 of 1980".

8. According to him, the petitioner themselves have admitted the fact that the respondent was working as an Electric Motor Driver between 1975 to 1979 and there is no reason why the judgment of this Court in W.P.(C) 1373/1980 should not be made applicable in his case as well. He has also drawn my attention to the orders dated April 26, 1988, December 23, 1991, March 07, 1989, October 06, 1994 and June 26, 1995 from Annexure R-4 (at pages 64 to 71 of this petition) to contend that the petitioner has regularized Beldars on a higher post of W.M.- Grade I with effect from 01.04.1978 irrespective of the posts held by them on Muster Roll.

9. Having considered the submissions made by the counsel for the parties, I note that this Court, while deciding W.P.(C) No. 1373/1980 on February 04, 1987, held as under:

"In the present writ petition, therefore, without quashing the decision of the respondent-Corporation of regularising the muster roll employees on point to point basis, I issue a writ of mandamus directing the respondent-Corporation to first consider the petitioners for promotion, if they are so eligible, to the next hither posts before they make recruitment to those posts on point to point basis from amongst the muster roll employees. I further direct the respondent-Corporation that, if need be, it should create supernumerary posts so as to accommodate the promotees. It is further directed that the persons

so promoted from amongst the petitioners will rank senior to the persons who are inducted, on point to point basis, from amongst the muster roll employees. The consideration for promotion from amongst the petitioners must be on that date (s) as on which date

(s) the muster roll employees are sought to be regularised in various posts".

10. That apart, a subsequent writ petition being C.W.P. No. 2976/2003 filed by the Municipal Corporation of Delhi challenging the award of the Industrial Tribunal, has been dismissed by the learned Single Judge of this court with the following observation:

"11. At this stage, it would be appropriate to also consider the submission made on behalf of the respondent/workman to the effect that other than the petitioner, large number of Awards were made in identical circumstances in favour of different muster roll employees whereby the MCD was directed to effect point to point promotion in terms of the order passed by this court. It has been stated that the MCD has duly regularised the concerned workman. These orders were exhibited before the Labour Court and have been considered in the impugned Award. Inter alia, pursuant to industrial awards, an order dated 12th May, 1995 was passed whereby the services of one Shri Chhagan Lal were regularised on 16th July, 1996; Order dated 28th April, 1995, Shri Om Parkash, Beldar was regularised as lift operator; order dated 26th February, 1997 whereby Shri Subhash Chand and Chagan Lal were regularised as lift operators, have been brought to the notice of this court.

Several other such orders have been relied upon on behalf of the petitioner".

11. I note, in the impugned award, the Industrial Tribunal on issue No. 1 has he ld as under:

"10. The term of reference in this case is, "whether the workman is entitled to be regularised

as Electric Motor Driver in the pay- scale of Rs. 260-400 since 1975 and if so, to what relief is he entitled and what directions are necessary in this respect? The workman in his statement of claim as also his affidavit Ex.WW1/A, has categorically deposed that on the asking of the management, he has been working as electric motor driver since the year 1975, which is a skilled post, and he is entitled to the pay-scale of Rs. 260-400 and to be regularised as such since 1.4.1978; and that the action of the management in regularising him as electric beldar in the pay-scale of Rs. 196-232 w.e.f. 1.4.1978 is illegal. The contention of the workman is fully corroborated by the cross- examination of the management witness MW-1 Shri A.R. Chugh, Executive Engineer-Electric-II, Civil Lines, M.C.D., Delhi, which has categorically admitted on oath that the workman worked as Electric Motor Driver from 1975-1979 (vold.) on daily-wages. This witness has further admitted the correctness of the letters Ex.WW1/21 and Ex.WW1/20. Ex.WW1/21 is office order dated 12-5- 95 issued by the management whereby Shri Chhagan Lal and Shri Subhash Chand, were regularised as Lift-operators in the pay-scale of Rs. 950-1500 w.e.f. 1.4.90. Ex.WW1/20 is copy of office order dated 26-2-97, whereby S/Shri Subhash Chand and Chagan Lal were regularised as Lift Operators w.e.f. 1.5.88 in the pay-scale of Rs. 950-1500.

11. The workman has also placed on record copy of pay-scale of CPWD, wherein post of Operator (E&M) is shown as skilled carrying pay- scale of Rs. 110-155; copy of demand notice dated 28-7-89; and copies of the various awards passed by this court; Shri Dharam Paul Arora, Presiding Officer, Industrial Tribunal No.III Shri P.K. Jain, Presiding Officer, Industrial Tribunal No.1.

12. From the documents placed on record as

discussed above, it is fully established that the post of Electric Motor Driver is of skilled category, which carries pay-scale of Rs. 260-400 w.e.f. 1.1.1973. The workman, no doubt, joined as an Electric Beldar with the management in the year 1978 on daily-wages. He was admittedly regularised by the management w.e.f. 1.4.78 as beldar, whereas he was entitled to be regularised as electric motor driver, as the fact that the workman worked as electric motor driver from 1975 onwards is categorically admitted by Shri A.R. Chugh, Executive Engineer (MW-1) of the management. Accordingly, the workman is entitled to the pay-scale of E.M.D. w.e.f. 1.4.78 of Rs. 260- 400 as revised from time to time."

12. From a perusal of the aforesaid conclusion of the Industrial Tribunal, it is noted that the Industrial Tribunal has relied upon the oral testimony of the Management Witness No. 1 Mr. A.R.Chugh wherein he has categorically admitted that the respondent worked as an Electric Motor Driver from 1975 to 1979 on daily wage basis. In fact, he has admitted the correctness of office order dated May 12, 1995 wherein the petitioner-Corporation has regularized certain Beldars as Lift Operators.

13. In view of the aforesaid finding of fact based on the admission on the part of the Management Witness, I do not see any reason to interfere with the impugned award of the Industrial Tribunal.

14. I quote for benefit, the conclusion of the learned Single Judge of this Court in C.W.P. No. 2976/2003 decided on November 30, 2005 wherein in para 13, it was held as under:

"13. I find that the challenge to the Award is based on a re-appreciation of the factual situation as if the present writ petition is an appeal against the Award passed by the Industrial Adjudicator. It is settled law that findings of fact recorded by a fact finding authority constituted for such purpose cannot be discharged for the mere

reason and having been based on materials or evidence which, according to the petitioner, were not sufficient or credible in its own to warrant such findings. In the instant case, findings of the Industrial Adjudicator were based on evidence, both oral and documentary, the same cannot be faulted on any legally tenable ground. In this behalf, a reference may be made to the pronouncement of the Apex Court in AIR 200 SC 1508 entitled Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers' Union & Another in which it was held thus:-

"The learned Single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally re- appreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a Tribunal, presided over by a Judicial Officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings, at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly be taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned Single Judge and in ordering restoration of the Award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned Single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as

it did, and the manner of consideration undertaken the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the Writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of re-assessing the evidence and arriving at findings of ones own, altogether giving a complete go-bye even to the facts specifically found by the Tribunal below".