Shri Mohkam Singh vs Delhi Jal Board

Devendra Kumar Upadhyaya, CJ

This intra-court appeal instituted under Clause X of the letters patent assails  the  judgment  and  order  dated  31.05.2024,  passed  by  learned  Single Judge dismissing the W.P.(C) 12253/2009 which was instituted by the appellant/petitioner,  challenging  the  award  dated  19.09.2008  passed  by  the Presiding Officer, Industrial Tribunal-II, Karkardooma Courts, Delhi.

At this juncture itself we may note that by the award dated 19.09.2008 the learned Industrial Tribunal had rejected the claim of the appellant/petitioner  for  regularisation  of  his  services  on  the  post  of  Baildar with the respondent-Delhi Jal Board and accordingly, the reference dated 08.12.2006 made by the appropriate Government under Sections 10(1)(d) and 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as‘ID Act’) was answered. By the award dated 19.09.2008, the learned Industrial Tribunal  held  that the appellant/petitioner  was  not entitled  to  be regularised in service.

Facts in brief of this case are that the appellant/petitioner is said to have joined as Baildar on 08.05.1982 on daily wage basis/fixed wages under the Minimum Wages Act, 1948 (hereinafter referred to as‘Wages Act’) with the Delhi Water Supply and Sewage Disposal Undertaking, the predecessor of the respondent-Delhi Jal Board.

It is said that service of the appellant/petitioner were terminated with effect from  09.01.1993 without any  charge-sheet  or  domestic  inquiry. The appellant/petitioner is said to have  been  involved  in a  criminal case under Sections 307/34 of the Indian Penal Code, Police Station Bora Kalan, District Muzaffarnagar in connection  with which he was under custody and faced trial which resulted in his acquittal on 15.01.1995. After his acquittal, the appellant/petitioner is said to have reported for duty on 24.02.1995, however, he was not allowed to join his duties, and accordingly, an industrial dispute was raised on a reference made by the appropriate Government vide notification dated 29.09.1997 to the learned Industrial Tribunal for adjudication of the issue, as to whether the services of the appellant/petitioner were terminated illegally and/or unjustifiably by the

management and  if  so,  to what relief was  he  entitled and what  directions were necessary in that respect. The said industrial dispute (ID No.753/1997) was decided by the learned Presiding Officer of the Labour Court–II, Karkardooma  Courts,  New  Delhi  vide  award  dated  03.01.2002  whereby,  it was held that termination of services of the appellant/petitioner w.e.f. 09.01.1993 was illegal and unjustified, with a further direction for his reinstatement in service as Baildar with 50% back wages, w.e.f from 17.07.1996.

It  appears  that  pursuant  to  the  said  award  of  the  Labour  Court  dated 03.01.2002, the appellant/petitioner was reinstated in service, however, he was not being regularised which led him to raise the second industrial dispute vide notification issued by the appropriate Government on 08.12.2006 for adjudication of the dispute, under Sections 10(1)(d) and 12(5) of the ID Act. The dispute which  was referred  for adjudication  to the Tribunal/Labour Court vide notification of the appropriate Government dated 08.12.2006  was, as to  whether the appellant/petitioner was  entitled  to be regularised on the post of Baildar, and if so, from which date and to what relief was he entitled and what directions were necessary in that respect. The said  industrial  dispute  raised  by the  appellant/petitioner  was  decided  by the Presiding Officer of the learned Industrial Tribunal – II, Karkardooma Courts, Delhi vide award dated 19.09.2008 wherein, it was held that the appellant/petitioner cannot be said to be entitled to regularisation from 01.04.1990 and further that he was not entitled to any relief or any direction from the Tribunal.

The said award dated 19.09.2008, passed by the learned Industrial Tribunal–II was challenged by the appellant/petitioner by instituting the W.P.(C)  12253/2009  which  has  been  dismissed  by  learned  Single  Judge  by the  impugned  judgment  and  order  dated  31.05.2004  that  is  under  challenge in the instant intra-court appeal.

Heard the learned counsel for the parties and perused the records available before us on this intra-court appeal.

The  learned  Industrial  Tribunal  in  the  course  of  rendering  the  award dated  19.09.2008,  had  framed  two  issues, namely,  (i)  whether there  existed relationship of employer and employee between the claimant and management and (ii) in terms of the reference: whether the workman was entitled  to  be  regularised  on  the  post  of  Baildar  and  if  so,  from  which  date and to what relief was he entitled and what directions were necessary in that respect.

On evaluation of the evidence available on record, the learned Industrial Tribunal, while passing the award dated 19.09.2008, recorded a finding that since the workman was employed with the management and therefore, there existed relationship of employer and employee between them. The first issue was decided accordingly.

As regards issue no (ii) as to whether, the appellant/petitioner was entitled to be regularised on the post of Baildar, the learned Industrial Tribunal, after discussing the evidence and taking into consideration various judgments, came to the conclusion that  the appellant/petitioner having  been appointed de-hors the Recruitment Rules, was not entitled to be regularised on  the  post  of  Baildar  from  his  initial  date  of  engagement  i.e.  08.05.1982. While arriving at the aforesaid conclusion, various relevant aspects of the matter and the evidence adduced by the parties were considered by the learned Industrial Tribunal, including the stand taken by the respondent that initial  engagement  of  the  appellant/petitioner  with  Delhi  Water  Supply  and Sewage Disposal Undertaking was not made against any sanctioned post and that he was engaged as a daily wager/muster roll employee. The learned Industrial Tribunal also concluded that there was a scheme of regularisation of daily wagers in the organisation of the respondent, according to which the daily wagers were to be regularised in accordance with their seniority, however, since the appellant/petitioner did not challenge the  earlier award dated 03.01.2002 whereby, he was reinstated in service w.e.f. 17.07.1996 which resulted in a break of service, he could not be entitled to be regularised in the services of the respondent.

The learned Industrial Tribunal in its award dated 19.09.2008, discussed the evidence led by the parties and considered the claim of the appellant/petitioner that since the Baildars who had joined w.e.f. May, 1982 had been regularised w.e.f. 01.04.1990, therefore, by not regularising his services,  the  respondent  had  acted  against  him  with  hostile  discrimination. However, the learned Industrial Tribunal also considered the evidence led by the respondent whereby it was established that he would also have been regularised w.e.f. 01.04.1990 had his services not been terminated w.e.f. 09.01.1993. The learned Industrial Tribunal also considered the evidence led by the appellant/petitioner himself wherein, he admitted that he had stopped reporting from duty w.e.f. 09.01.1993 and that thereafter, he raised the industrial dispute which led to passing of the award dated 03.01.2002 directing  his  reinstatement  with  50%  back  wages  w.e.f.  17.07.1996.  It  was also admitted  by  appellant/petitioner that vide the award dated  03.01.2002 he had not been given the benefit of continuity in service. It is, thus, noticeable that the appellant/petitioner did not challenge the award dated 03.01.2002  whereby  he  was  reinstated  in  service  w.e.f.  17.07.1996  and  not w.e.f.  09.01.1993,  which  resulted  in  break  in  service  as  daily  wager/muster roll  employee  and  accordingly,  under  the  policy  of  regularisation  he  could not be regularised at the relevant point of time.

The learned Industrial Tribunal has clearly held that because of the aforesaid circumstances where a break in service occurred for the period commencing on 09.01.1993 till the date of his reinstatement i.e. 17.07.1996 as  directed by the Labour Court in  its award  dated 03.01.2002, it cannot be pleaded that there has been any hostile discrimination meted out to the appellant/petitioner and further that there is no violation of the policy of regularisation of daily wager employees as notified by the respondent.

Learned Single Judge by the impugned judgment and order did not interfere with the award dated 19.09.2008, which was under challenge before him.

It has been contended on behalf of the appellant/petitioner that in terms of the law laid down by the Hon’ble Supreme Court in ONGC v. Krishan Gopal, 2020 SCC OnLine SC 150, where an employer had regularised  similarly  situated  workmen  under  any  scheme  or  otherwise,  the same benefit should be made available to a workman who has been deprived of such benefit of regularisation at par with the workmen whose services have been regularised and if any such complaint is made before the Labour Court  or  Industrial  Tribunal,  the  same  needs  to  be  considered  accordingly, for the reason that deprivation of any such benefit would amount to violation of Article 14 of the Constitution of India. He has laid emphasis on the proposition  laid  down  in  paragraph  34(iv)  of  the  report  in  ONGC  (supra). Paragraph 34 of the said judgment is extracted herein below:

“34.⁠⁠The following propositions would emerge upon analyzing the above decisions:

(i) Wide as they are, the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation, where such a direction would in the context of public employment offend the provisions contained in Article 14 of the Constitution;

(ii) The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair  labour  practice  by  not  filling  up  permanent  posts  even  though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages;

(iii)  The power  to create  permanent  or  sanctioned  posts  lies  outside the  judicial  domain  and  where  no  posts  are  available,  a  direction  to grant regularisation would be impermissible merely on the basis of the number of years of service;

(iv) Where an employer has regularised similarly situated workmen either in a scheme or otherwise, it would be open to workmen who have been deprived of the same benefit at par with the workmen who have been regularised to make a complaint before the Labour or Industrial Court, since the deprivation of the benefit would amount to a violation of Article 14; and

(v) In order to constitute an unfair labour practice under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should  be  engaging  workmen  as  badlis,  temporaries  or  casuals,  and continuing them for years, with  the object of depriving them of the benefits payable to permanent workmen.”

So far as the legal proposition propounded in ONGC (supra) is concerned, there cannot be any quarrel, however, in the facts of the present case,  the  claim  of  regularisation  on  the  ground  that  the  appellant/petitioner was subjected to hostile discrimination, cannot be accepted for the reason that the learned Industrial Tribunal has clearly recorded a finding that he would  also  have  been  regularised  under  the  scheme  of  the  respondent  had his services not been terminated w.e.f. 09.01.1993. It is also noteworthy that the award  dated  03.01.2002, though  directed  the  respondent to reinstate the appellant/petitioner, but only w.e.f. from 17.07.1996 and not w.e.f. 09.01.1993. The date of reinstatement as directed by the Labour Court award dated 03.01.2002 was never challenged by the appellant/petitioner and therefore, finding of a break in service has been recorded by the learned Industrial Tribunal in the award, dated 19.09.2008.

Learned counsel for the appellant/petitioner, thereafter, placed reliance on Sanat Kumar Dwivedi v. Dhar Jila Sahakari Bhoomi Vikas Bank Maryadit, (2001) 9 SCC 402 to submit that even if a workman is deprived of back wages, the order depriving the back wages will not be treated to be resulting in any break in service. The facts of the said case were that the workman was reinstated in service by dint of an order dated 12.05.1978 with a condition that he will not get any back wages. In the said case, the services of the workman were terminated on 08.03.1976 but by the order dated 12.05.1978 he was reinstated without back wages. The workman had accepted the reinstatement without back wages by submitting his joining report on 13.05.1978. The Court observed that under these facts, subsequent dispute raised by him regarding back wages was clearly not maintainable in terms of the law laid down by Hon’ble Supreme Court in State of Punjab v. Krishan Niwas, 1997 9 SCC 31, however, the Hon’ble Supreme Court clarified that order dated 12.05.1978 cannot be treated to have resulted in any break in service of the workman, rather will be deprived only the back wages  and  further  that  continuity  of  service  and  all  other  notional  benefits will be available to him

However, the judgement of Sanat Kumar Dwivedi (supra), in our opinion,  is  not  applicable  to  the  facts  of  the  instant  case  for  the  reason  that the award dated 03.01.2002 clearly stipulated that the appellant/petitioner shall be reinstated in service w.e.f. 17.07.1996 and not w.e.f. 09.01.1993 when  his  services  were  terminated.  As  already  observed  above,  the  date  of reinstatement as stipulated in the award dated 03.01.2002 was never challenged by the appellant/petitioner and therefore, in the facts of the instant case, we do not find any illegality in the finding recorded by the Labour  Court  in  its  award  dated  19.09.2008  that  there  occurred  a  break  in service which disentitled the appellant/petitioner to claim  regularisation in service.

Reliance placed by learned counsel for the appellant/petitioner on Gurpreet Singh v. State of Punjab, (2002) 9 SCC 492 is also of no avail to the  cause  of  the  appellant/petitioner  for  the  reason  that  in  the  said  case  the High Court, by the order which was under challenge before Hon’ble Supreme Court, had confirmed the decree of the Appellant Court that workman will not be entitled to any arrears of salary, further adding that he will  not  get  continuity  in  service.  It  is  in  these  facts  that  Hon’ble  Supreme Court  observed  that  it  is  beyond  comprehension  how  continuity  of  service could  be  denied  once  the  workman  was  directed  to  be  reinstated  in  service on  setting  aside  the  order  of  termination.  In  the  present  case,  however,  the Labour  Court,  while  directing  reinstatement  of  the  appellant/petitioner  vide award dated 03.01.2002, had specifically directed that he shall be reinstated w.e.f. 17.07.1996 and not w.e.f. the date on which his services were terminated i.e. 09.01.1993. The said direction of the Labour Court in its award dated 03.01.2002 was never challenged by the appellant/petitioner and therefore, in our opinion, Gurpreet Singh (supra) does not have any application to the facts of the present case.

For the similar reasons the judgment of High Court of Gujarat in Vasantika  R.  Dalia  v.  Baroda  Municipal  Corporation,  1997  SCC  OnLine Guj 93 and of this Court in Om Prakash v. Delhi Jal Board, 2015 SCC OnLine Del 12739 also do not improve the case of the appellant/petitioner.

Learned counsel for the appellant/petitioner also refers to the judgment  of  Hon’ble  Supreme  Court  in  the  case  of  Maharashtra  SRTC  v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556 wherein it has been held by Hon’ble Supreme Court that notwithstanding the judgment rendered by Hon’ble Supreme Court in State of Karnataka v. Umadevi  (3),  (2006)  4  SCC  1  the  power  of  industrial  adjudicators,  i.e.  the learned Industrial Tribunal and the Labour Court, does not get diluted to adjudicate any dispute raised by the workman who has been a victim of unfair labour practice. The said judgment also does not improve the case of the appellant/petitioner for the reasons already stated above in the preceding paragraphs.

So far as reference made to the judgment in Bidi, Bidi Leaves & Tobacco Merchants' Association v. State of Bombay, 1961 SCC OnLine SC  33  is  concerned,  we  note  that  Hon’ble  Supreme  Court  in  the  said  case has held  that  under the  ID  Act, industrial  adjudicators  have  been  give  wide powers and jurisdiction to make appropriate award while determining the industrial dispute brought before them. There cannot be any dispute so far as the legal proposition propounded in this judgment is concerned, however, in view of the finding arrived at by us in the preceding paragraphs, this judgment also does not help the cause of the appellant/petitioner.

It is needless to say that initial engagement of the appellant/petitioner as  daily  wager/muster  roll  employee  was  made  not  against  any  sanctioned post, however, since policy of regularisation by the respondent was brought into force, the claim of the appellant/petitioner would have been considered. But, in  view of the  unambiguous  finding  recorded  by the learned  Industrial Tribunal in its award dated 19.09.2008 that his services could not be regularised under the scheme of regularisation on account of break in service,  his  claim for  regularisation  in  service  has  rightly  been  not  acceded to by the learned Industrial Tribunal.

We thus, find that learned Single Judge has rightly not interfered with the award dated 19.09.2008 rendered by the learned Industrial Tribunal. Accordingly, we do not find any good ground to interfere in the instant intra-court appeal, which is hereby dismissed.

There will be no order as to costs..