Workmen Of Dda vs Delhi Development Authority
2016 Latest Caselaw 1611 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                    Judgment delivered on: February 29, 2016


%       W.P.(C) No.4690/2004

     WORKMEN OF DDA                                              .....Petitioner
                  Through:                 Mr. Varun Prasad and Mr. G. S. Charya,
                                           Advocates.

                            versus

     DELHI DEVELOPMENT AUTHORITY                  .....Respondent
                   Through: Mr. Arun Birbal and Mr. Sanjay Singh,
                            Advocates.


        CORAM:
        HON'BLE MR. JUSTICE I.S. MEHTA

                                     JUDGMENT

I. S. MEHTA, J.

1. The present petitioners, i.e., Workmen, DDA (hereinafter referred

to as the „petitioner-workmen‟) have preferred the present Writ Petition

under Articles 226 and 227 of the Constitution of India for issuance of

appropriate Writ, order or direction to set aside the impugned Award

dated 01.05.2003 passed by the Presiding Officer, Industrial Tribunal No.

III, Delhi (hereinafter referred to as the „learned Labour Court/Industrial

Adjudicator‟) in I.D. No. 20/1997.

2. The brief facts stated are that the petitioner-workmen, i.e., Shri

Ramgopal Singh, Shri Adil Singh, Shri Rajinder Prasad, Shri Kartar

Singh, Shri Kamal Kishore, Shri Hoshiar Singh, Shri Nepal Singh, Shri

Virender Singh, Shri Anil Kumar, Shri Prem Chand, Shri Amrinder

Kumar Singh, Shri Bhim Singh, Shri Yogender Kumar, Shri Ashok

Kumar, Shri Rakesh Kushwaha, Shri Babu Ram, Mohd. Sarfarajuddin

and Shri Ashok Kumar, whose cause of action has been exposed through

the D.D.A Mazdoor Union wherein the petitioner-workmen were

claiming the wages at par with the regular employees in the category of

pump operator for the duration of their muster roll employment, i.e., pay

scale of Rs. 260-350 revised to Rs. 950-1400 w.e.f. 01.01.1986.

3. Thereafter, the Government vide order No. F.24(4577)/96-

Lab./53334-38 dated 23.12.1996 sent the dispute of the petitioner-

management to the learned Industrial Adjudicator for adjudication, i.e.,

"Whether S/Shri Ram Gopal Singh, Adil Singh, Bhim Singh, Yogender Kumar, Ashok Kumar, Rajender Prasad, Kartar Singh, Kamal Kishore, Hoshiar Singh, Nepal Singh, Virender Singh, Anil Kumar, Prem Chand, Amrinder Kumar Singh, Rakesh Kushwaha, Babu Ram, Mohd. Sarfrajuddin and Ashok Kumar are entitled to wages at par with the regular employees for the duration of their muster-roll employment on daily wages, and if so, to what relief are they entitled and what directions are necessary in this respect?"

4. The petitioner-workmen were performing their duties as muster

roll employees and were paid minimum wages from time to time.

However, the petitioner-workmen also took the duty of pump operator,

which was permanent in nature.

5. The petitioner-workmen are/were skilled workmen and remained in

the continuous employment of the respondent-management.

Consequently, following petitioner-workmen were regularised and seven

petitioner-workmen were transferred from the respondent-management to

MCD, i.e.,

S. Name Period of Muster Roll Date of Date of No. Regularisation Transfer to MCD

1. Shri Ramgopal Singh 01.03.1983 to 18.09.1989 19.09.1989

2. Shri Adil Singh 12.01.1983 to 18.09.1989 19.09.1989

3. Shri Rajinder Prasad 01.01.1982 to 18.09.1989 19.09.1989

4. Shri Kartar Singh 17.01.1986 to 31.12.1993 01.01.1994

5. Shri Kamal Kishore 06.09.1982 to 31.12.1984 01.01.1985

6. Shri Hoshiar Singh 13.04.1983 to 18.09.1989 19.09.1989

7. Shri Nepal Singh 02.11.1981 to 05.03.1984 06.03.1984

8. Shri Virender Singh 01.12.1983 to 18.09.1989 19.09.1989

9. Shri Anil Kumar 10.08.1983 to 18.09.1989 19.09.1989

10. Shri Prem Chand 29.07.1983 to 18.09.1989 19.09.1989

11. Shri Amrinder 01.01.1883 to 18.09.1989 19.09.1989 Kumar Singh

12. Shri Bhim Singh 19.05.1986 to 18.09.1989 -

13. Shri Yogender 20.02.1986 to 25.04.1993 26.04.1993 Kumar

14. Shri Ashok Kumar 20.02.1986 to 25.04.1993 26.04.1993

15. Shri Rakesh 09.07.1986 to 25.04.1993 26.04.1993 Kushwaha

16. Shri Babu Ram 09.07.1986 to 25.04.1993 26.04.1993

17. Mohd. Sarfarajuddin 01.07.1986 to 25.04.1993 26.04.1993

18. Shri Ashok Kumar 16.07.1986 to 25.04.1993 26.04.1993

6. The respondent-management during the relevant period were

taking the work of pump operator from the regular employees in the pay

scale of Rs.260-350, which was enhanced to Rs.950-1400 along with all

allowances w.e.f. 01.01.1986.

7. The respondent-management during the period of muster roll

employees till its regularisation and transfer to MCD took the duty of

pump operator from the petitioner-workmen and they were not given

salary of pump operator rather were given only the minimum wages.

Consequently, after completing 90 days of continuous work, the

petitioner-workmen were entitled to a difference of pay, i.e., minimum

wages minus pump operators pay scale of Rs.260-350 which was

enhanced to Rs.950-1400 along with all allowances.

8. The petitioner-workmen who have been regularised by the

respondent-management arbitrarily not on its due date of regularisation

are entitled to equal pay for equal work as shown below:

          S. No.   Name                        Period of Muster Roll      Date         of
                                                                          Regularisation

          1.       Shri Ramgopal Singh         01.03.1983 to 18.09.1989   19.09.1989

          2.       Shri Adil Singh             12.01.1983 to 18.09.1989   19.09.1989
          3.       Shri Rajinder Prasad        01.01.1982 to 18.09.1989   19.09.1989

          4.       Shri Kartar Singh           17.01.1986 to 31.12.1993   01.01.1994
          5.       Shri Kamal Kishore          06.09.1982 to 31.12.1984   01.01.1985
          6.       Shri Hoshiar Singh          13.04.1983 to 18.09.1989   19.09.1989
          7.       Shri Nepal Singh            02.11.1981 to 05.03.1984   06.03.1984
          8.       Shri Virender Singh         01.12.1983 to 18.09.1989   19.09.1989
          9.       Shri Anil Kumar             10.08.1983 to 18.09.1989   19.09.1989
          10.      Shri Prem Chand             29.07.1983 to 18.09.1989   19.09.1989

11. Shri Amrinder Kumar Singh 01.01.1883 to 18.09.1989 19.09.1989

12. Shri Bhim Singh 19.05.1986 to 18.09.1989

13. Shri Yogender Kumar 20.02.1986 to 25.04.1993

14. Shri Ashok Kumar 20.02.1986 to 25.04.1993

15. Shri Rakesh Kushwaha 09.07.1986 to 25.04.1993

16. Shri Babu Ram 09.07.1986 to 25.04.1993

17. Mohd. Sarfarajuddin 01.07.1986 to 25.04.1993

18. Shri Ashok Kumar 16.07.1986 to 25.04.1993

9. The claim of the petitioner-workmen is contested by the

respondent-management and denied the allegations of petitioner-

workmen on the ground that the petitioner-workmen were kept as muster

roll employees for relevant period and they were not the permanent

employees of the respondent-management. The payment for muster roll

period has been paid to the petitioner-workmen. The petitioner-workmen

were never appointed by the competent authority as regular pump

operators. There is difference between work charge employees and

permanent employees. There are three types of workmen which is clearly

mentioned in the C.P.W.D. manual, i.e., casual labour (daily wagers),

work charge employees and regular employees. The petitioner-workmen

were kept on daily wage basis on muster roll. Therefore, they did not

come in the category of regular pump operators and hence, are not

entitled to any relief under the Equal Remuneration Act, 1976.

10. The petitioner-workmen reaffirm the averments made in the

statement of claim and denied the allegations made in the written

statement filed on behalf of the respondent-management.

11. Both the parties led their evidences on the respective issues and the

learned Industrial Adjudicator after hearing both the parties passed the

impugned Award. Consequently, the present Writ Petition is filed on

behalf of the petitioner-workmen.

12. The learned counsel for the petitioner-workmen has submitted that

the learned Industrial Adjudicator went wrong in deciding the issue

whether the respondent-management has adopted the pay scale of CPWD

employees requiring them to pay the minimum time scale with all

allowances except increment. It is further submitted that this aspect of the

matter had not been gone into by the learned Industrial Adjudicator.

Therefore, the matter needs to be remanded back to the learned Industrial

Adjudicator to give an exact finding on this issue. The learned counsel for

the petitioner-workmen in support of his arguments has relied upon the

judgment of the Apex Court in the case of Surinder Singh and Another

vs. Engineer-in-Chief, C.P.W.D. and Other, (1986) 1 SCC 639, order of

the Division Bench of Delhi High Court in the case of North Delhi

Municipal Corporation & Ors. vs. Harpal Singh & 460 & Ors, LPA

573/2013 and the policy of Municipal Corporation of Delhi No.

F.4(2)/88-SCY/ON/672 dated 16.06.1988.

13. On the other hand, the learned counsel for the respondent-

management vehemently opposes the contentions raised by the learned

counsel for the petitioner-workmen and submits that the petitioner-

workmen were working as daily wagers and since their position in law is

that of a daily wager, they cannot adopt the same procedure which has

been adopted for the purpose of regular employees. He further submits

that whenever their services will be regularized, they will get benefits at

par with the regular employees and in support of his arguments has relied

upon the judgments of the Apex Court in the case of State of Haryana

and Others vs. Jasmer Singh and Others, (1996) 11 SCC 77, State of

Haryana and Others vs. Charanjit Singh and Others, (2006) 9 SCC 321

and State of Punjab and Another vs. Surjit Singh and Others, (2009) 9

SCC 514 and also relied on the judgment of this Court in the case of

Rajbir Singh vs. D.D.A., 2007 (95) DRJ 300.

14. Instant is a case where the petitioner-workmen are raising a dispute

pertaining to the pay scale for the duration of the muster roll employment

when they were employed with the respondent-management. The

petitioner-workmen are claiming their pay scale of pump operator on the

basis of the parity as that of the regular employee.

15. The respondent-management in the written statement has not

denied that the petitioner-workmen were employed with them. However

on relying on the CPWD manual, the respondent-management came up

with a plea that there are three types of workers with the management,

i.e., (a) casual labour (daily wager), (b) work charge employee and (c)

regular employees, and submitted that the petitioner-workmen were kept

on muster roll as daily wagers and were not the permanent employees of

the management.

16. The claim of the petitioner-workmen is that the respondent-

management were taking the work of pump operator from the regular

appointed workmen in the pay scale of Rs.260-350 and revised pay scale

to Rs.950-1400 w.e.f. 01.01.1996 onwards and the respondent-

management discriminated the petitioner-workmen by not regularizing

even after their completion of 90 days of continuous service with the

respondent-management. The respondent-management further

discriminated by not giving due leave to the petitioner-workmen and

other pensionary benefits, whereas the petitioner-workmen were also

entitled to equal pay for equal work with those employees who have been

regularised and performed the work of pump operator in the pay scale of

Rs.260-350 revised to Rs.950-1400 w.e.f. 01.01.1996.

17. There is a policy of the CPWD which has been adopted by the

MCD, i.e., No. F.4(2)/88-SCY/ON/672 dated 16.06.1988, requiring daily

rated workmen to be paid wages at par with regular counter parts which is

reproduced as under:

"The wages of the workers will be calculated in the manner indicated in the circulars issued by CPWD and will be effective from 1.4.88 only in view of very tight financial position of the MCD and the ongoing process of regularization of daily wages employees according to phased programme besides other extra facilities already extended to them by different departments. Because of large number of daily wages employees working in MCD, the increase in wages may bring additional financial liability to the tune of about Rs.6.5 crores and we may have to cut down the civic services drastically if the payment is to be made from the date earlier than 1.4.1988. Proportionate increase will also have to be allowed to part time workers depending upon the actual duration of their duties. In order to get over the requirement of additional hands for enti-malaria operations, for short duration only, the department may engage 300 unskilled workers at the rate to be LPA 573/2013, 516/2013 & 514/2013 6 of 6 worked out on the basis on Rs.875/- per month. A preamble for approval of

increased rates of wages be taken to standing committee positively within two weeks."

The aforementioned policy requires differential in wages to be made to

the daily rated workmen after 01.04.1988.

18. Admittedly, the petitioner-workmen were employed with the

respondent-management during the relevant period. The respondent-

management, i.e., DDA, also follows the CPWD manual.

19. The policy, circular dated 16.06.1988 was not placed before the

learned Industrial Adjudicator by the parties in dispute at the time of

passing the impugned Award for giving its effect to determine the issue in

controversy. Therefore, the adjudication of the matter in controversy in

presence of the aforesaid policy is required.

20. As such, the impugned Award dated 01.05.2003 is set aside and the

file is sent back to the learned Industrial Adjudicator to adjudicate and

pass a fresh Award after giving fair opportunities to both the parties. The

present Writ Petition is disposed off accordingly.

21. Parties are directed to appear before the learned Industrial

Adjudicator on 22.03.2016 and the learned Industrial Adjudicator is

directed to dispose off the matter within a period of six months from the

date of receipt of this judgment.

22. The Lower Court record be sent back with a copy of this Judgment.

No order as to costs.

I.S. MEHTA, J

FEBURARY 29, 2016 „dc‟