The Mgt Of M/S. Municipal ... vs The Presiding Officer, Labour ...
2014 Latest Caselaw 2195 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Decided on May 01, 2014
+                            W.P.(C) 1245/1997
THE MGT OF M/S. MUNICIPAL CORPORATION OF DELHI
                                                ..... Petitioner
              Represented by: Mr.Suresh Tripathi, Advocate

                    versus

THE PRESIDING OFFICER, LABOUR COURT-IV AND ORS.
                                            ..... Respondents
              Represented by: Mr.Neelam Tiwari, Advocate for
                              LRs of R-2

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

1. In terms of the last order dated April 04, 2014, pursuant to the statement made by the learned counsel for the petitioner that he would ask his client to bring the cheque of arrears under Section 17-B of the Industrial Disputes Act, 1947 (Act in short), as was granted by this Court on November 04, 2009, in favour of Mrs.Angoori Devi, wife of deceased-workman, a cheque of Rs.60,271/-, drawn in favour of Mrs. Angoori Devi has been prepared and brought to the Court.

2. The learned counsel appearing for the legal heirs of the respondent No. 2 states that Mrs. Angoori Devi, wife of the deceased workman has left the family of the deceased-workman along with her daughter and their whereabouts are not known. She states that the mother of the deceased workman has come to the Court today. She would further state, the amount of arrears be directed to be deposited by the petitioner in this Court and as and when Mrs. Angoori Devi is

resurfaced, she would claim the said amount. I am unable to accept this submission of the learned counsel for the legal heirs of the respondent No. 2. In any case, as per the settled position of law, if arrears under Section 17-B of the Act are payable, the same has to be claimed by the workman, in this case, the legal heirs, till the death of the deceased- workman by invoking provisions of the Act i.e. Section 33(c)(1). Since, Mrs. Angoori Devi, wife of the deceased-workman has not come to this Court, I am of the view that the payment of arrears, through cheque brought by the petitioner today, cannot be paid to the mother of the deceased-workman, as she has not been named in the amended memo of parties. The legal heirs of the deceased-workman would be at liberty to approach appropriate forum for appropriate remedy.

3. Heard the learned counsel for the parties on merit.

4. The challenge in this writ petition by the Municipal Corporation of Delhi is to the award dated September 26, 1995 in I.D. No. 195/89 whereby the Labour Court has directed reinstatement of the deceased- workman Ashok Kumar in the minimum of pay scale of Rs. 750-940/- w.e.f. March 01, 1986 till his reinstatement.

5. During the pendency of this petition, the respondent No. 2- workman expired on January 01, 2006. The legal heirs of the deceased- workman have been brought on record. As per the amended memo of parties, the legal heirs of the deceased-workman are Mrs. Angoori Devi, wife and Ms. Ekta, the daughter.

6. As noted above, the learned counsel appearing for the legal heirs of the respondent No. 2 states that the legal heirs have left the family of the deceased-workman and their whereabouts are not known.

7. The impugned order was passed on a reference made by the

appropriate Government on March 03, 1989 in the following terms:

"Whether Sh. Ashok Kumar has abandoned his services or his services have been terminated illegally and/or unjustifiably and if so, to what relief is he entitled and what directions are necessary in this respect".

8. In the statement of claim, it was contended by the deceased- workman that he was employed with the Water Supply and Sewage Disposal Undertaking of the petitioner-Corporation w.e.f. June 18, 1984 as a 'Sewer Beldar' on daily rated casual/muster roll worker. According to him, the regular employees doing identical works were being paid the salary in the pay scale of Rs. 196-232 with usual allowances admissible under the Rules. He had stated, with w.e.f. January 01, 1986, the scale of Rs. 196-232/- has been revised to Rs.750-940/-. He had further stated that his services were terminated w.e.f. March 01, 1986 without assigning any reason.

9. The petitioner-Corporation had taken a stand that the deceased- workman was engaged as a casual labour on muster roll for a specific work and he was paid the minimum of scale of CPWD pattern as per the ruling of the Supreme Court. It was also the stand that the deceased-workman had abandoned the work without any notice and intimation. The petitioner-Corporation had admitted that the deceased- workman was engaged on muster roll on June 18, 1984 as casual worker.

10. According to the petitioner-Corporation, since deceased- workman absented from work and it was not a case for dismissal or termination, there was no need to give notice or notice pay etc. to him.

11. The Labour Court framed two issues; (1) Whether the workman

has abandoned his job as alleged and its effects and (2) as per the terms of reference.

12. Both the issues were decided together and the Labour Court was of the view that the services of the deceased-workman were terminated in violation of Section 25-F of the Act and thereby, granted reinstatement with full back wages. Further, the Labour Court was of the view that the work done by the deceased-workman was of a regular nature and as such, has granted him the pay at the minimum of pay scale of Rs. 750-940/- w.e.f. March 01, 1986 till his reinstatement.

13. On May 06, 1997, this Court had stayed the operation of the impugned award. Since the workman had expired on January 01 2006, the award insofar as his reinstatement, cannot now be given effect to. The only issue which falls for consideration is whether the legal heirs of the deceased-workman would be entitled to the back wages w.e.f. March 01, 1986 till he expired on January 01, 2006 in the pay scale of Rs. 750-940/-.

14. Mr.Suresh Tripathi, learned counsel appearing for the petitioner would submit that the engagement of the deceased-workman was on casual basis/muster roll. He states that since appointment/engagement was not against a sanctioned post, the Labour Court has erred in directing the payment of pay to the deceased-workman in the minimum of pay scale of Rs. 750-940/-. He would rely upon the judgment of the Supreme Court reported as (2007) 8 SCC 279, S.C.Chandra and Ors. Vs. State of Jharkhand and Ors. in support of his contention.

15. On the other hand, Ms. Neelam Tiwari, learned counsel appearing for the legal heirs of the respondent No. 2-decased/workman

would submit that the petitioner was proceeded ex parte by the Labour Court and the petitioner has not challenged the ex parte proceedings before the Labour Court. Further, it is her contention that in view of the fact that the petitioner was proceeded ex parte, no evidence was led by the petitioner before the Labour Court.

16. On a consideration of the rival submissions, I am of the view that insofar as the conclusion of the Labour Court to pay the deceased- workman to pay in the minimum of pay scale of Rs. 750-940/- is concerned, the same is erroneous. It is the case of the deceased- workman that he was engaged as a casual labour on muster roll. He was being paid on daily wage basis. His engagement was for specific work. It was to come to an end automatically on the completion of the work.

17. The issue which falls for consideration is, being a casual labour on muster roll, paid on daily wage basis, whether the deceased- workman was entitled to the pay in the minimum of pay scale, as granted by the Labour Court. The answer is in the negative. The Supreme Court in the case of S.C.Chandra (supra), relying upon its earlier judgments and defining the scope of judicial review for grant of pay scale, has held as under:

"35. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).

36. It is well settled by the Supreme Court that only

because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal v. Tarun K. Roy and Ors., (2004) I LLJ 421 SC.

37. Similarly, in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association [2002] SUPP 1 SCR 118, the principle of equal pay for equal work was considered in great detail. In paragraphs 9 & 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and Ors. v. Pradip Kumar Dey."

18. In view of the aforesaid position of law, the directions given by the Labour Court are not sustainable. The writ petition is accordingly allowed and the direction of the Labour Court, directing the grant of pay to the deceased-workman, which benefit otherwise would have accrued to his legal heirs, is set aside.

19. No costs.

(V.KAMESWAR RAO) JUDGE MAY 01, 2014 akb