Full Text
HIGH COURT OF DELHI
Date of Decision: 8th September, 2015.
SHRI RAM SINGH ..... Appellant
Through : Mr. Rajiv Aggarwal, Mr. Sachin Kumar, Advocates.
Through : Mr. R.V. Sinha, Advocate.
HON'BLE MR. JUSTICE I.S.MEHTA GITA MITTAL, J (ORAL)
JUDGMENT
1. The appellant assails the judgment dated 24th September, 2012, passed by learned Single in W.P.(C) 4441/2006. By this impugned judgment, the learned Single Judge set aside an Industrial Award dated 23rd January, 2004, holding that the action of the CPWD in not regularizing the services of Ram Singh as Carpenter w.e.f. his date of appointment on 1st January, 1972 was not justified.
2. With the consent of the parties, the appeal is taken up for consideration today. We have heard learned counsels for the parties at length who have carefully taken us through the records.
3. The essential facts giving rise to the instant appeal are noted 2015:DHC:7426-DB hereinafter. Mr. Ram Singh, appellant herein was admittedly in employment with the CPWD, respondent herein as Carpenter since 1st January, 1972. It is not disputed that he maintained an unblemished and uninterrupted record of service throughout his career. The appellant was treated as a daily wager/muster roll worker and was paid only fixed wages under the Minimum Wages Act, which stood revised from time to time.
4. Aggrieved by non regularization of his services and deprivation of the appropriate pay scale and allowances, the appellant raised an industrial dispute which came to be referred as I.D. No. 147/90 before the Presiding Officer, Central Government, Industrial Tribunal: Cum Labour Court –II, Rajendera Bhawan, Ground Floor, Rajendra Place, New Delhi vide its letter dated 18th December, 1990, which referred the following dispute for adjudication:- “Whether the action of management of CPWD New Delhi in not regularizing the services of Shri Ram Singh, Carpenter w.e.f. 01.01.1972 is justified? If not, to what relief the workman is entitled to?”
5. Before the Industrial Tribunal, there was no dispute to the essential facts on which the claim of the appellant was premised. Additionally, the learned counsel for the respondent stated that the recruitment rules were made for the appointment of the carpenters according to which 50% of the appointments to the post of carpenters were effected by direct recruitment and 50% by promotion. It was stated that the appellant had been asked to appear in the trade test but he did not do so, for which reason, he was not regularized. In support of its submission, the respondent had relied upon a letter in which it was claimed that the appellant had refused to accept the same. The record of the case is silent so far as the date on which such a letter was at all tendered to the appellant. Even the details of this communication is not pointed out even before us.
6. It is an admitted position that the appellant discharged continuous services as a Carpenter w.e.f. 1st January, 1972 and that the services of the appellant were also found satisfactory. No complaint at all in respect of the working of the appellant had been placed on record. The respondent has also admitted that it used to assign the work as a carpenter to the appellant which he has regularly and uninterruptedly discharged.
7. On an elaborate consideration of the matter, the Industrial Tribunal was of the view that, though the appellant was working w.e.f. 1st January, 1972, but as the matter came to be referred to the Industrial Adjudicator only on 14th December, 1990, therefore, the appellant-Ram Singh could be considered for relief only from 14th December, 1990. Additionally, for the reason that appellant had not undertaken the test so far as arrears of salary were concerned, he would not be entitled to full wages but only to 50% of the back wages with usual increments. The Industrial Award was accordingly passed in these terms on 23rd January, 2004.
8. Aggrieved by the relief granted, the respondents assailed the same by way of the writ petition being W.P.(C) No.4441/2006. Placing reliance on the pronouncement of the Supreme Court in the judgment reported at (2006) 4 SCC 1 in The Secretary, State of Karnataka and Ors. v. Uma Devi and Ors., this writ petition came to be accepted by the learned Single Judge. Unfortunately, the observations of the Supreme Court in para 53 of Uma Devi were not placed before the learned Single Judge, which resulted in passing of the impugned order. We may usefully extract these observations, which reads thus:-
9. It is an admitted position that in the present case, even till the year 1990, when the appellant had raised an industrial dispute, he had been working with the respondent since the year 1972. This means that the appellant was in continuous service with the respondent for a period of over 18 years. In terms of the above position, the appellant had to be held entitled to regularization of his services as he had worked continuously for a period way beyond 10 years as noted in Para 53 of Uma Devi.
10. By 2006, when Uma Devi was pronounced, this appellant had more than twenty eight years of uninterrupted satisfactory service behind him. We may note that it is not the respondent’s contention before us that the appellant was irregularly or illegally appointed at the relevant time, when he was initially inducted into services. This was an accepted mode of engaging services in positions as carpenter.
11. The stand of the respondent as well, was that services of muster roll workers who joined before the year 1985 and passed the trade test as per CPWD Manual were regularized by the Superintendent (E) of CPWD.
12. The respondents also do not contend that the petitioner does not have the necessary qualification.
13. Mr. Rajiv Aggarwal, learned counsel appearing for the appellant/ Ram Singh has also drawn our attention to a recent pronouncement of the Supreme Court reported as 2015 (5) SCALE 353 in ONGC Limited v. Petroleum Coal Labour Union & Ors. in support of his submission that the prohibition laid down in Uma Devi does not apply to industrial adjudication. We may usefully extract the relevant portion of this judicial pronouncement, which reads thus:-
22. “The Industrial Disputes Act is a benign measure, which seeks to pre-empt industrial tensions, provide the mechanics of dispute resolutions and set up the necessary infrastructure, so that the energies of the partners in production may not be dissipated in counterproductive battles and the assurance of industrial justice may create a climate of goodwill.” Thus, the powers of an Industrial Tribunal/Labour Court to adjudicate the industrial dispute on the points of dispute referred to it by the appropriate government have been well established by the legal principles laid down by this Court in a catena of cases referred to supra. Therefore, the Tribunal has rightly passed an award directing the Corporation to regularise the services of the concerned workmen.
28. Whether the appointment of the workmen concerned in the services of the Corporation is irregular or illegal?
31. In the case on hand, the workmen concerned were employed by the Corporation initially through contractors. Thereafter, on issuance of the Notification dated 8-12-1976 by the Central Government abolishing contract labour for the posts of watch and ward, dusting and cleaning jobs in the Corporation under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, the Corporation and the workmen concerned arrived at a settlement under Section 18(1) of the Act, wherein a cooperative society was formed in the name of “Thai Security Service Priyadarshini Indira Cooperative Society” for their welfare, thus dispensing with intermediary contractors. During the pendency of the sanction from the Central Government of the alleged “policy decision”, the workmen concerned were appointed directly from 13-1-1988 to 29-2-1988 and thereafter, they were employed continuously without written orders by the Corporation. It is the contention of the learned Senior Counsel on behalf of the Corporation that the services of the workmen concerned cannot be regularised as their appointment was originally and initially through contractors and thereafter, without following any procedure of selection and appointment as per the Recruitment Rules and therefore, the same is illegal by placing reliance on the decision of this Court in para 43 of Umadevi (3) case [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753]. Further, this Court in Ajaypal Singh v. Haryana Warehousing Corpn. [(2015) 6 SCC 321: (2014) 13 Scale 636] opined that when a workman is initially appointed in violation of Articles 14 and 16 of the Constitution of India, then the employer at the time of re-employment of the retrenched workman cannot take the plea that the initial appointment was in violation of the abovementioned provisions. The relevant paragraph of Ajaypal Singh case [(2015) 6 SCC 321: (2014) 13 Scale 636] is extracted hereunder: (SCC p. 329, para 17)
17. “…The provisions of the Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi (3) case [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753]. The issue pertaining to unfair labour practice was neither the subject-matter for decision nor was it decided in Umadevi (3) case [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753].” The plea of the Corporation that the reason for not regularising the workmen concerned under the Certified Standing Orders of the Corporation is allegedly due to the fact that the appointment of the workmen concerned was made without following due procedure under the Recruitment Rules and that their appointments were illegal. This plea cannot be accepted by us in view of the legal principle laid down by this Court in the above decision, wherein it is clearly laid down that the Corporation cannot deny the rights of the workmen by taking the plea that their initial appointment was contrary to Articles 14 and 16 of the Constitution.” (emphasis supplied)
14. Though there is no plea of irregularity in the appellant’s initial appointment, but the above enunciation of law only supports the appellant’s claims and entitlement. On the same aspect in another recent decision of Supreme Court reported as (2015) 4 SCALE 334 in Umrala Gram Panchayat v. The Secretary, Municipal Employees Union & Ors., it has been observed as under:-
14. Therefore, the learned single Judge as well as the Division Bench of the High Court have exercised the power under Articles 226 and 227 of the Constitution of India and have rightly held that the Labour Court has jurisdiction to decide the industrial dispute that has been referred to it by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed upon the decision of this Court in the case of Maharashtra State Road Transport Corporation and Anr. v. Casteribe Rajya P. Karmchari Sanghatana, wherein it has been held thus: "32.The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule
IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer." Further, reliance has been placed upon the decision of this Court in the case of Durgapur Casual Workers Union v. Food Corporation of India, wherein it has been held thus: "19. Almost similar issue relating to unfair trade practice by employer and the effect of decision of Umadevi (3) in the grant of relief was considered by this Court in Ajaypal Singh v. Haryana Warehousing Corporation in Civil Appeal No. 6327 of 2014 decided on 9th July, 2014. In the said case, this Court observed and held as follows:
20. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case.
21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees....""
15. Thus, in the light of the above referred cases of this Court, it is amply clear that the judgments and orders of the High Court and the Award passed by the Labour Court are reasonable and the same have been arrived at in a just and fair manner.
16. The reliance placed by the learned senior counsel for the appellant upon the decision of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors. does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the courts below.
17. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant-Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law.
18. For the reasons stated supra, we dismiss the appeals and direct the appellants to treat the services of the concerned workmen as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them.”
15. In view of above, it is accordingly observed that the Supreme Court has therefore, carefully created a special class of cases, wherein, the claim of unfair labour practice of continuing daily wagers/ad hoc employment/casual workers for long periods and regularization has withstood scrutiny by an Industrial Adjudicator under the Industrial Disputes Act, 1947.
16. Learned counsel for the appellant has drawn our attention to the para 17 of Umrala, wherein, the Supreme Court has mandated that a person who has completed 240 days of continuous service, becomes entitled to regularization. The para 17 of the Judgment reads thus:- “17. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant-Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law.”
17. In the present case, we are not talking of a few days or 240 days but a period of 43 years i.e. since the year 1972, when the petitioner has rendered satisfactory, blemishless and uninterrupted services to the respondent. To say the least, the denial of regular appointment to the appellant has resulted in depriving him of regular pay scale, emoluments as well as leave benefits etc to the appellant which tantamounts to an extremely unfair labour practice and exploitation of the services of the poor worker.
18. So far as the aspect of trade test is concerned, it cannot be denied that the skills and expertise of a person who commenced work as a carpenter in 1972 would be different from a carpenter who may have received formal training and joined CPWD in the year 1990 or after the year 2000. Recognizing the aspect of difference of skills by virtue of differential training as well as by passage of time, the Division Bench of this court in a judgment reported as 2013 I AD (DELHI) 779 S.K. Chaudhary & Ors. v. NCT of Delhi considered the question as to what should be the process to subject the employees to be regularized who have served for long as daily wager/ ad hoc employee/ casual employee. In para 16 of the pronouncement, this court noted that neither the judgment in Uma Devi nor in a later judgment reported as 2010 VIII AD S.C. 661 in State of Karnataka and others v. M.L. Kesari and Ors, the court had rendered any opinion on this aspect.
19. It may be noted that the adjudication in S.K. Chaudhary related to appointments to the posts of Junior Engineers with the Delhi State Industrial and Infrastructure Development Corporation. These writ petitioners had been appointed on contract basis or on muster roll basis as Work Assistants/Technical Supervisors. Some of the writ petitioners were later on inducted as Junior Engineers on ad hoc basis and Assistant Engineers on ad hoc basis. The Court was concerned with the manner in which the writ petitioners deserved to be considered decided for the purposes of their regular induction into services in para 25, 26, 27 and 28 which may usefully be extracted and read thus: