Delhi High Court
New Delhi Municipal Council vs Harish Kumar on 18 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: April 18, 2017
+ W.P.(C) 7102/2012 & C.M.18363/2012
NEW DELHI MUNICIPAL COUNCIL ..... Petitioner
Through: Mr. Vivek B. Saharya, Additonal
Standing Counsel
versus
HARISH KUMAR ..... Respondent
Through: Mr. Atul T.N., Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
A Reference was made to the Tribunal as to whether non-
employment of respondent-workman by petitioner-Management is legal
and justified and the said Reference has been answered vide impugned
Award of 3rd November, 2011 with direction to petitioner-Management to
take respondent-workman on its regular Muster Roll as per his seniority
in pursuance to its Circular of 11th April, 1996 (Ex.WW1/7). The
undisputed facts, as noted in the impugned Award, are as under: -
"It is not disputed between the parties that vide order
dated 11.4.96 passed by Director (Personnel) of the
management, a seniority list of those workmen who had
completed 500 days upto 31.8.95 was displayed for taking
them on regular MR and that the name of claimant was
mentioned at serial no. 42 of the list and that the claimant was
not taken on regular MR although several other persons junior
to him as per the list were taken.
It is submitted by the claimant in his claim that he sent a
demand notice to the management on 18.9.2002 but the
management did not send any reply. The claimant has sought
reinstatement with full back wages and regularization of
service."
The stand taken by petitioner-Management was that as per the
Recruitment Rules, respondent-workman was not entitled to be put on
regular Muster Roll as he did not fulfill the pre-conditions for being put
on Muster Roll. Petitioner had relied upon its undated Resolution
(Ex.MW1/2) which requires that a workman ought to have been
completed 500 days or more upto 31st December, 2000.
The challenge to impugned Award in this petition is on the ground
that respondent-workman is not qualified to be put on regular Muster Roll
as he is not eligible as per the applicable Resolution (Ex.MW1/2) and the
Tribunal has erred in discarding this Resolution (Ex.MW1/2) by
summarily brushing it aside as irrelevant. So, it is submitted by learned
counsel for petitioner that in view of Resolution (Ex.MW1/2),
respondent-workman is not entitled to be put on regular Muster Roll. It is
pointed out by learned counsel for petitioner that the Circular of 11 th
April, 1996 (Ex.WW1/7) relied upon by the Tribunal is not applicable as
it was not approved by the Competent Authority of petitioner-
Management and this Circular of the year 1996 is to be read in
conjunction with the Resolution (Ex.MW1/2). Thus, it is submitted by
learned counsel for petitioner that impugned Award deserves to be set
aside.
On the other hand, learned counsel for respondent-workman
supports impugned Award and submits that respondent-workman had
worked for more than 500 days and it is so evident from petitioner's list
of Beldars (Ex.WW1/10). It is pointed out by respondent's counsel that
129 Beldars have been regularized while excluding respondent-workman
although he figures at serial number 78 in the said list of Beldars. Lastly,
it is submitted by respondent's counsel that in a case of similarly placed
Beldars, Award directing absorption on regular Muster Roll has been
implemented whereas respondent-workman herein has been singled out.
So, it is submitted that impugned Award deserves to be upheld and this
petition ought to be dismissed. Nothing else is urged on behalf of either
side.
Upon hearing learned counsel for the parties and on perusal of
impugned Award and the evidence on record, I find that the Tribunal has
rightly discarded petitioner's Resolution (Ex.MW1/2) for the reason that
it requires that a Beldar must have worked during the years 1995 and
1997. It is a matter of record that respondent-workman had worked upto
1st May, 1992 and as per the reply filed by petitioner before the Tribunal,
he had worked for a period of 621 days though not continuously. The first
requirement of petitioner's Resolution of having completed 500 days or
more as on 31st December, 1998 could not have been possibly satisfied by
respondent-workman as he was on temporary Muster Roll upto 1 st May,
1992.
In the considered opinion of this Court, the Tribunal has rightly
relied upon petitioner's Circular of 11th April, 1996 (Ex.WW1/7) as there
is nothing on record to show that it required the approval of petitioner's
Management. It is being so said for the reason that petitioner had failed to
place on record any document to show as to what was the applicable
Circular/ Resolution in the year 1992 as that would be the relevant year to
govern the case in hand. However, considering the fact that respondent-
workman had belatedly approached the Tribunal after delay of one
decade, this Court finds that the Tribunal has erred in directing that
respondent-workman to be put on regular Muster Roll. So, respondent
cannot claim parity with other beldars.
During the course of hearing, this Court was informed by
respondent's counsel that by now, respondent-workman is aged more
than 55 years. In such a situation, it is deemed appropriate to modify the
impugned Award to the extent of substituting the relief granted with
direction to petitioner to pay the compensation to respondent-workman.
In the facts and circumstances of this case, it is directed that
respondent-workman be compensated by paying him `50,000/- in lieu of
putting respondent-workman on regular Muster Roll. Eight weeks' time is
granted to petitioner to pay the compensation of `50,000/- to respondent-
workman.
With aforesaid directions, this petition and the application are
disposed of while modifying the impugned Award in above terms. Copy
of this order be given dasti to petitioner's counsel to ensure compliance
of this judgment.
(SUNIL GAUR)
JUDGE
APRIL 18, 2017
s
