Municipal Corporation of Delhi v. Deputy Labour Commissioner & Ors.

8. Learned senior counsel for the petitioner submits that in fact, these W.P.(C) 15417/2022 & connected matters respondent workmen were appointed on daily wages against the leave substitute’s posts in the year 1996-1998.

9. It has been submitted that these respondent workmen along with many other daily wagers were regularized in April, 2013. It has further been submitted that the present disputes revolves around the arrears and MACP of pay for the intervening period between 2004-2013.

10. Learned senior counsel submits in fact, the plea taken by the respondents-workmen are that they are entitled to be regularized w.e.f. 2004. Learned senior counsel submits that these workmen could not have been regularized w.e.f. 2004 as there were no sanctioned post at that time. Reliance has been placed on “Secretary, State of Karnataka and Others v. Uma Devi (3) and Others”(2006) 4 SCC 1.

11. Learned senior counsel further relied upon the circular dated 2nd March, 2020 which is regarding claim of arrears of employees regularized in the year March, 2013. Vide this circular, a clarification was issued which is as follows;

12. Learned senior counsel submits that payment of the arrears in terms of the attachment order issued by the learned Labour Court would run into around 600 crores with respect to all the employees and therefore, in view of the judgment of the Supreme Court in “Secretary, State of Karnataka and Others (supra), “State of Rajasthan & Ors. v. Daya Lal & Ors.” (2011) 2 SCC 429 and “Nand Kumar v. State of Bihar & Ors.” (2014) 5 SCC 300, the matter requires deliberation and the recovery certificate are liable to be stayed immediately.

13. Sh. Sujoy Gosh, learned senior counsel for the respondent vehemently opposed the same. Learned senior counsel submits that as per office order of the corporation itself, dated 26th December, 2014, which refers to the Resolution No. 212 dated 13th December, 2014, the creation of 5000 posts of regular were Swachhata Karmachari were created w.e.f. 1st April, 2004. Learned senior counsel submits that in view of this order of the erstwhile East Delhi Municipal Corporation the order of the learned Labour Court is absolutely correct.

14. Learned senior counsel has further submitted that on the same analogy, the Safai Karmacharis were regularized in South Municipal Corporation and North Delhi Municipal Corporation w.e.f. 1st April, 2004.

15. Learned senior counsel has further submitted that the present respondents-workmen will be seriously prejudiced if they are not W.P.(C) 15417/2022 & connected matters regularized, despite a resolution of the corporation w.e.f. 1st April,

2004. Learned senior counsel has also submitted that even EDMC has paid 25% of the arrears w.e.f. 1st April, 2004 to the EDMC employees.

16. As this Court has noted earlier, the present writ petition has raised a very serious issue as to a senior officer having made a statement allegedly unauthorisedly, without any instruction and contrary to the written statements filed by him only before the learned Labour Court. The matter is pending departmental inquiry and is also stated to be subject matter of the investigation to be conducted by the law enforcement agency. The culmination of such inquiry and investigation may take a long time. The staying of the recovery certificate may cause a serious prejudice to the respondentworkmen. At the same time asking the corporation to make the payment to the respondents-workmen on the basis of the statement allegedly having been made without any authorization and contrary to the record may be a dent on the public exchequer. The refund /recovery of such amount may also be very difficult.

17. In these circumstances, in order to balance the interest of the parties, it would be desirable if the matter is remanded back to the learned Labour Court. Learned Labour Court is directed to decide the application under Section 33-C-(2) of the Industrial Disputes Act dated 10th February, 2020 having been filed by the respondents-workmen on the basis of the written statement filed by the petitioner corporation and independent of the statement made by Sh. Ramesh Chandra Sahoo made on 13th January, 2021.

18. It is pertinent to mention here that this Court has not gone into the merits of the case and nothing expressed or stated herein shall tantamount to be any expression on the merits of the case. Both the parties shall be at liberty to raise all contentions before the learned Labour Court regarding the application under Section 33- C-(2) of the Industrial Disputes Act and its reply.

19. Learned senior counsel very fairly submitted that corporation shall produce the service books of all the respondent-workmen before the learned Labour Court so as to assist the Labour Court in proper adjudication of the application under Section 33-C-(2) of the Industrial Disputes Act.

20. In view of the seriousness of the matter, learned Labour Court is directed to dispose of the matter as expeditiously as possible. However, recovery certificate issued in award No. F23(523)/Imp/Lab/E/2021/7813 dated 5th November, 2021 shall remain in abeyance till the matter is decided de novo by the learned Labour Court.

21. With these observations, the present petition along with pending applications stands disposed of.”

2. Present writ petitions have been filed on identical facts.

3. Learned senior counsel for the respondent submits that the only distinction between the cases earlier disposed of and the present cases are that in the earlier order dated 14th October, 2022, the contention of the learned senior counsel for the petitioner was recorded that the respondent –workman along with other daily wagers were regularized in April, 2013.

4. Learned senior counsel for the respondent submits that, however, in the present cases and in particular W.P.(C) 15417/2022, MCD has specifically stated in reply to the claim petition that the claimant was initially appointed as a daily wager by the management and thereafter their services were regularized by the management w.e.f. 1st April, 2003 by EDMC. Learned senior counsel for the respondents submits that therefore, it is a different case. Attention of the Court has been invited to para 4 of the reply to the claim petition, wherein it has been recorded as under:

5. Learned senior counsel for the petitioner has submitted that the submission made by learned senior counsel for the respondent is incorrect and in fact, the writ petition earlier disposed of vide order dated 14th October, 2022 and the present petitions are on identical facts. Learned senior counsel for the petitioner has also invited the attention of this Court to para 4 of the reply to the claim petition wherein the Corporation has stated that it has to implement the benefits of the payband of Rs.5200-20,00+GP1800/- with MACP in the Pay Scale of its W.P.(C) 15417/2022 & connected matters employees, and the same are under process.

6. Learned senior counsel for the petitioner has specifically stated that MCD in the reply, which are identical in all the cases, has took a plea that the arrears of difference of salary as claimed by the claimant are not correct and the correct amount is being calculated by the department. Learned senior counsel submits that the period of entitlement of the claimants are yet to be ascertained by the Corporation. Learned senior counsel has submitted that in fact, the statement made by Mr. Ramesh Chandra Shahoo, Assistant Commissioner, Shahdara South Zone, EDMC-32 that the management shall pay the difference of pay scales with the arrears along with other consequential benefits by giving the benefits of MACP with its all consequential benefits as claimed by the claimant as soon as the funds are available, is incorrect and had been made without any instructions and is contrary to record.

7. Learned senior counsel for the petitioner submits that similarly, the learned Labour Court has fallen into an error by accepting the statement of Mr. Ramesh Chandra Shahoo, Assistant Commissioner, Shahdara South Zone, EDMC-32 by making a direction to make the balance payment to the claimant as per the statement made by him.

8. The present proceedings have emanated out of the claim petition filed under Section 33-C (2) of the Industrial Disputes Act, 1947. In a brief compass, the MCD has filed all these writ petitions on the ground that Mr. Ramesh Chandra Shahoo, Assistant Commissioner, Shahdara South Zone, EDMC-110032 has made a statement unauthorizedly and contrary to the record, on the basis of which the learned Labour Court has passed the impugned order.

9. Learned Senior counsel for the petitioner has submitted that until the period of entitlement is ascertained such directions could not have been passed.

10. This Court will restrain itself from making any comments/observations on the rival contentions as posed by both the learned senior counsels regarding the date from which the arrears of salary/pay is to be made. I consider that this is required to be adjudicated in terms of the directions as passed in the earlier writ petition bearing W.P. (C) No. 14377/2022 tiled as “Municipal Corporation of Delhi vs. Deputy Labour Commissioner & Ors” disposed of vide order dated 14th October, 2022.

11. It is pertinent to mention here that this Court has not gone into the merits of the cases and nothing expressed or stated herein shall tantamount to be any expression on the merits of the cases. Both the parties shall be at liberty to raise all contentions before the learned Labour Court regarding the application under Section 33-C-(2) of the Industrial Disputes Act and its reply.

12. The corporation shall produce the service books of all the respondentworkmen before the learned Labour Court so as to assist the Labour Court in proper adjudication of the application under Section 33-C-(2) of the Industrial Disputes Act.

13. Learned Labour Court is directed to dispose of the matters as expeditiously as possible. However, all recovery certificates pertaining to the impugned awards in LCA Nos. 691/19, 692/19, 693/19, 694/19, 695/19, 697/19, 698/19, 699/19, 700/19, 815/19, 816/19, 817/19 & 818/19 in W.P.(C)15417/2022; LCA Nos. 671/19, 804/19, 805/19, 806/19, 807/19, 808/19, 809/19, 810/19, 811/19, 812/19 & 813/19 in W.P.(C)15423/2022; LCA Nos. 277/19, 278/19, 279/19, 280/19, 281/19, 285/19, 286/19, 287/19, 288/19, 289/19, 290/19, 291/19, 295/19, 296/19, 297/19, 298/19, 444/19, 445/19, 446/19, 447/19, 448/19, 449/19, 450/19, 458/19, 459/19, 460/19, 461/19, 462/19, 463/19, 464/19, 465/19, 466/19, 468/19, 469/19 & 470/19 in W.P.(C) 15427/2022; LCA Nos. 339/19, 340/19, 341/19, 342/19, 343/19, 344/19, 345/19, 346/19, 347/19 & 348/19 in W.P.(C) 15492/2022; LCA Nos. 300/19, 301/19, 302/19, 303/19, 304/19, 305/19, 308/19, 309/19, 313/19 & 319/19 in W.P.(C) 15493/2022; LCA Nos. 783/19, 784/19, 785/19, 786/19, 787/19, 788/19, 789/19, 790/19, 791/19 & 792/19 in W.P.(C) 15510/2022; LCA Nos. 642/19, 643/19, 644/19, 645/19, 646/19, 647/19, 648/19, 649/19, 794/19, 795/19, 796/19, 797/19 & 798/19 in W.P.(C) 15511/2022; LCA Nos. 837/19, 838/19, 839/19, 840/19, 841/19, 842/19, 843/19, 844/19, 845/19, 847/19, 848/19, 849/19, 850/19, 851/19, 852/19, 854/19, 855/19 & 856/19 in W.P.(C) 15512/2022 shall remain in abeyance till the matter is decided de novo by the learned Labour Court.

14. Let litigation expenses to the tune of Rs.5,000/- be paid to each respondent-workman in these petitions by the petitioner.

15. With these observations, the present petitions along with all pending applications stand disposed of.”

DINESH KUMAR SHARMA, J NOVEMBER 11, 2022