ORDER
A.K. Sikri, J.
1. Municipal Corporation of Delhi (hereinafter referred to as MCD for short) which is petitioner in the instant case has filed this writ petition against award dated 13.1.1995 passed by Industrial Tribunal No. 2 (herein-after referred to as ‘IT’ for short) in I.D. 66 of 1987.
2. Respondent No. 1 Gauri Shankar was engaged as Mali-beldar by MCD on 25.10.1983 and he continued to work for a substantial period of time and thereafter claimed regularisation of his service on the ground that the job against which he was working was of a permanent and regular nature and carries pay scale of Rs. 196-230 with usual allowances. As MCD did not concede his demand, he raised industrial dispute through Municipal Employees Union which was referred by Secretary (Labour) vide notification No. F. 24(743)/87-Lab/9341-46 dated……
10.3.1987 : Following are the terms of reference :-
“Whether Shri Gauri Shankar is entitled to be regularised as belder/mali and if so, from which date and what directions are necessary in this respect?”
3. When this matter was pending adjudication before the Industrial Tribunal, the MCD of its own regularised the services of respondent No. 1 w.e.f. 1.4.1989. However, since respondent No. 1 workman was claiming regularisation w.e.f. 25.10.1983, the industrial Tribunal adjudicated upon this aspect of the matter and vide impugned award dated 13.1.1995 held that workman was entitled to be regularised from the date of his initial appointment i.e. 25.10.1983 with all consequential benefits. Against this award present writ petition is preferred by MCD.
4. When this petition came up for preliminary hearing, on 12th February, 1997 court issued notice Limited to the following question :-
CW. 601/97 :
“Limited to the extent that the Industrial Tribunal has given its finding that the workman be treated on continuous regular employment from the date of his initial joining from 25.10.1983, issue notice to respondents to show cause as to why rule nisi be not issued, returnable on …..”
5. It would be worthwhile to mention that persuant to the aforesaid order all sums which were due to the workman from 1st April, 1989 in terms of the award were given to the workman.
6. The only controversy which is to be decided is as to whether the award of the Labour Court in directing the regularisation of the workman from the date of his initial joining i.e. 25th October, 1983 is in order or not.
7. Learned counsel for the petitioner MCD. Ms. Anjana Gosain argued that regularisation of workman w.e.f. 12.10.1983 i.e. date of his initial appointment as directed by the Industrial Tribunal was not in order and could not be sustained inasmuch as the MCD has its scheme of regularisation as per which the casual workers are regularised on the basis of their seniority as casual employees. Respondent/workman was regularised w.e.f. 1.4.1989 on his turn and as per seniority of daily wagers beldars. As a daily wager he was engaged against specific sanction obtained from time to time and his appointment of daily wager was in the emergency of the work for a particular period which did not confer upon any right to be regularised.
8. On the other hand, Mr. Rajiv Aggarwal appearing for the workman has contended that this court while exercising its power under Article 226 of the Constitution of India should sustain the award passed by the II even if there are holes here and there in the award and the award should not be set aside on hyper technical grounds. In support of this submission, respondent have cited the following judgments :-
(i). Sadhu Ram Vs. Delhi Transport Corporation – (para 3).
(ii). Harbans Lal Vs. Jagmohan Saran – .
(iii). Calcutta Port Shramik Union Vs. Calcutta River Transport Association, 1988 Supp. SCC 768 (para 10).
(iv). Sudhoo Vs. M/s. Haji Lal Mohammad Bidi Works & Others – 1990 Lab. & I.C. 1538 (para 8).
9. It is further submitted that IT has widest powers in adjudicating disputes which no other Court or Tribunal has and IT can create new obligations and modify old ones. Respondents has relied upon the following cases in support of this particular argument.
(i). 1949 I.L.J. 245 at page 256, in Western India Automobiles Vs. the Industrial Tribunal, Bombay and others.
(ii) 1950 ILJ (part two of Reprint) page 921, The Bharat Bank Ltd., Delhi Vs. The Employees of the Bharat Banks Ltd.
(iii) 1961 (1) ILJ 521 – New Maneckchowk Spinning and Weaving Co. Ltd., and others and Textile labour Association, Ahmedabad.
(iv) Rajasthan State Road Transport Corporation Vs. Krishna Kant.
(vi) 1995 Suppl. (1) SCC 223 (at page 225, paras 3 and 4) Swadesh Cotton Mills Vs. Labour Court.
(vii) 1960 (2) L L J. 233 (at pages 238-240) Standard vacuum Refining Co. Vs. Its workmen.
(viii). – Delhi Administration Vs. Yogender Singh and others.
10. Mr. Rajesh Aggarwal, counsel appearing on behalf of the respondent-workman further argued that Tribunal derives its jurisdiction from the order of reference and as per the terms of reference he could be given the relief of regularisation from the date of his initial appointment, i.e. 25th October, 1983. The terms of reference in this case are quoted below :
“Whether Shri Gauri Shankar is entitled to be regularised as beldar/mali and if so, from which date and what directions are necessary in this respect?”
11. It was further argued that engaging the Workman on casual basis for a number of years clearly amounted to unfair labour practice and therefore IT was within its jurisdiction to grant the relief of regularisation from the date of initial appointment of the workman. Mr. Rajesh Aggarwal referred to the judgment of the Supreme Court in the case of Chief Conservator of Forest and another Vs. Jagannath Murti Mondhars and others to contend that the relief of regularisation given by the IT was upheld by the Supreme Court. He also referred to two judgments of this court in Delhi Administrative Vs. Yogender Singh and others and in Trilok Chand Vs. National Industrial Development Corporation and others reported in 1994 FLR 791 in support of this submission.
12. It was further contended by counsel for respondent/workman that it was within the jurisdiction of the Tribunal to regularise the workman from the date of his initial appointment and following judgments were cited to support this submission :
(i) Dhirender Chamoli Vs. State of U.P. – 1986 I LLJ 134;
(ii) Surinder Singh Vs. Engineer-in-Chief & Others – 1986 I LLJ 403.
(iii) Jeet Singh & others Vs. MCD – .
(iv) Gaida Ram & others Vs. MCD & others – 1988 (1) SLR 327.
(v) Brahm Prakash Bhardwaj & others Vs. MCD – 1987 (6) ELJ 26 SC.
13. It was further stated that there were number of cases where courts have held that if an employee puts in 240 days of service he is deemed to be employee puts in 240 days of service, he is deemed to be regular employee and in this case since the petitioner has put in much more than 240 days of service the direction by the IT to regularise him from the initial date of appointment was appropriate. It was also contended that financial ability of the employer is immaterial when it comes to enforcement of enactments like Equal Remuneration Act and the payment is to be made on the principle of equal pay for equal work.
14. Commenting upon the policy of regularisation scheme framed by the MCD, Mr. Rajesh Aggarwal contented that : “The management of MCD is employing persons on muster roll and paying them less remuneration than the regular employees right from its inception in 1958. Various unions were agitating against such appointments and demanding regularisation of such employees from their initial date of appointment into service with all consequential benefits. The first time this problem came in writing as it reflects from Resolution No. 1002 passed by MCD on 05.01.1967. In the said Resolution, the Unions demanded regularisation of services of such employees and the management of MCD assured them that a seniority list of such employees will be maintained and according to seniority they will be regularised.
15. The Unions and the workers were not satisfied by the above-mentioned resolutions and on 20.11.78 the management of MCD finally formulated at policy for regularisation of the employees of MCD. According to the said policy, no daily wager was to be appointed after 1978 and the muster roll employees appointed upto 1970 were entitled to be regularised in service w.e.f. 01.04.78 and the muster roll employees appointed between 1970 to 1972 were entitled to be regularised w.e.f. 01.04.79 and the employee appointed between 1972 to 1974 were entitled to be regularised w.e.f. 01.04.80 and likewise the employees appointed between 1974 to 1976 were entitled to be regularised w.e.f. 01.04.81 and the employees appointed between 1976 to 1978 were entitled to be regularised w.e.f. 01.04.1982. The whole idea was to regularizes all the muster roll employees appointed upto the year 1978.
16. The management of Municipal Corporation of Delhi instead of appointing employees on regular basis after 1978 continued employing persons on muster roll basis and used policies of regularisation as a devise to exploit the poor workman, which they formulated after 1978. At least all the policies framed after the policy dated 20.11.1978 are held to be a device and not a bona fide exercise.
17. On the basis of the aforesaid submissions, the counsel for respondent No. 1/workman prayed that impugned award be upheld by this court.
18. I have considered with the same, it would be appropriate to refer to the impugned award passed by the IT granting relief of regularisation to respondent No. 1/workman from date of his initial appointment.
The learned A.R. for the management has argued that the workman cannot be regularised because he was not working against a permanent and regular job as alleged by him and he was engaged only as daily wager against specific sanction obtained from time to time and the services of the daily wagers are engaged in the exigencies of work for a particular period. This argument of the learned A.R. for the management cannot be accepted as admittedly the job position was known exclusively to the management. It should have provided the complete data as to the number of posts/jobs vacant with it when the workman was employed. The management should have also proved on the record about the subsequent creation of posts or the availability of vacant posts due to retirement etc. The management has not proved any such document on the record and the adverse presumption on that account is to be drawn against the management. It is proved on the record that the workman Shri Gauri Shankar continuously worked with the management from the date of his initial appointment i.e. 25.10.1983 till date, which clearly shows that he had been working against a permanent and regular nature of job and at least there was no likelihood of job and at least there was no like hood of the said job being abolished. The learned A.R. for the management has submitted that the workman has been regularised w.e.f. 1.4.1989, as stated by MW-1. Shri M.R. Tootia, so this reference has become infructuous. This argument of the learned A.R. for the management has also got no force, because the workman is claiming his regularisation from the date of his initial employment i.e. 25.10.1983. As the post against which the workman was employed continued for years together, there is no reason for no treating the same as permanent post. If a person continuously work on the same post for a number of years, he is deemed to be working on a regular/permanent nature of job, which is not likely to be abolished. If the said person is not appointed on regular basis on the said post, whereas the others are so appointed, the same is in contravention of Articles 14 and 16 of the Constitution of India. Non-regularisation of the workman entails forfeiture of his rightful dues. It stands proved on the record that the workman had worked as belder/mali with the management for years together continuously. I am of the view that employing a person as casual/daily rated/muster roll for indefinite period is unfair labour practice. It is well settled law that the muster roll workmen are to be paid on equal footing with the regular workman. Equity also demands such a treatment to them.
The concept of equality before law and equal treatment of all employees is a fundamental right. It seems offensive to the constitutional norms if the two similar employees who perform same duties are treated differently in the matter of pay scales or regularisation. Our own High Court in the case of Shri Suresh Kumar Vs. Union of India, CW. 3442/87 decided on 13.1.1989 has held that a daily wager who worked for more than 240 days in a year. in any industry has to appointed. Similarly, in case of Harish Kumar Vs. Registrar, Delhi High Court and another, in CWP. 727/88 decided on 15.3.1990. Our own High Court has again held that any person working in a position for more than 240 days has to be treated as a person regularly appointed. In the present case, the workman has proved that he has continuously worked for more than 240 days. In view of the decisions of our own. High Court the workman in this case has to be taken as having been regularly appointed from the date of his initial appointment.
19. From the aforesaid reasoning given by the IT it would be seen that the Tribunal has been influenced by the following factors :-
A. The contention of the management that workman was not appointed against a permanent and regular post and he was appointed only as a daily wager is not accepted on the ground that management has not provided the complete data as to the number of post/jobs vacant with it when the workman was employed. It is observed that management should have also brought on record the material regarding creation of post or availability of the vacant post due to retirement, etc.
B. Since workman is continuously working with the management for a number of years it clearly shows that he had been working in a permanent and regular nature of job and atleast there was no like hood of the said job being abolished.
C. As the post against which workman was employed continued for years together, there was no reason for not considering the same a permanent post. If the said person is not employed on a regular basis on the said post whereas others are so appointed the same is in contravention of Article 14 and 16 of the Constitution of India.
D. Employing a person as a daily/casual/muster roll is an unfair labour practice.
E. It has been held in many cases that any person working in a position for more than 240 days has to be treated as person regularly employed.
20. I am afraid that none of the aforesaid reasons are tenable in law to give direction to regularities the workman from initial date of engagement. No doubt when there is regular work available, the management should not resort to appointment of persons on casual basis and thereafter continue to employ workers on casual basis for a long period for filling up the posts. However, after a person is appointed on casual basis and continues on casual basis for a long period, it does not follow therefrom that there was a substantive post available or 479 the said person has been working against a permanent post. Merely because the management did not produce complete data as to number of posts available at the time of appointment of respondent No. 1 the Tribunal could not draw the presumption that respondent No. 1 was working against permanent post. What could only be inferred that he is needed for the work which he was doing but it cannot lead us to the conclusion that he was appointed against a permanent post. Permanent post would come into existence only when it is created by competent authority or held by regular incumbent is vacated by him on retirement, resignation, death etc. The very fact that there is scheme of regularisation as per which such casual workers are to be regularised as per their seniority as and when post becomes available and the workman was regularised on its turn on 1.4.1989, it could be reasonably inferred that he was not engaged against permanent or substantive post.
21. The quarrel is not about his regularisation since he is already regularised by the petitioner itself w.e.f. 1st April, 1989. The question to be determined is as to whether it can be treated that he is regularly appointed from the date of his initial employment i.e. 25th October, 1983. My answer to this question is in the negative. It may be stated that even if it is presumed that keeping an employee on casual/daily/muster roll for a long period amounted to unfair labour practice and also denying the said employee wages which are given to the regular workman, this is totally a different aspect. In fact in this award itself, applying the principle of equal pay for equal work, workman is given the wages which are paid to regular employees even from the date prior to his regularisation by the management i.e. for the period from 25th October, 1983 to 1st April, 1989. Since notice in this petition was issued on limited aspect and the amount already stands paid to the workman, therefore I am not commenting on this aspects. Fact remains that respondent/workmen has been paid same wages as are paid to regular workman. However, the controversy is about the regularisation of the workman from the date of this initial appointment. If the reasoning of the IT is accepted and the relief granted by the IT is to be sustained, the effect of that would be : (a) presumption that there was a permanent post as on 25th October, 1983; (b) presumption that respondent No. 1/workman applied for the said post and was duly selected by a property constituted Selection Committee in accordance with recruitment rules.
22. Both these presumptions cannot be drawn. Admittedly, respondent/workman was engaged on casual basis and it is nobody’s case that any post was advertised and applications call for or workman alongwith others was considered and duly selected.
23. As far as permanent absorption of the daily wage/casual employees is concerned, the same can be granted only if there are sanctioned posts available for being filled up and in fact in most of the decisions of the Supreme Court on regularisation, the Supreme Court had directed the employer in those cases to frame policy for regularising the daily wage/casual employees. It would be appropriate to quote the directions by the Supreme Court given in Dhirendra Chamoli Case (supra) :-
“We therefore, allow writ petition and make rule absolute and direct the Central Government to accord to these persons who are employed by the Nehru Yuvak Kendras and who are concededly performing the same duties as class IV employees, except regularisation which cannot be done since there are no sanctioned posts. But we hope and trust that posts will be sanctioned by the Central Government in the different Nehru Yuvak Kendras, so that there persons can be regularised.”
24. Moreover, it is an admitted case that MCD has framed the policy of regularisation of daily wagers/casual employees. It is also not denied that as per the said policy casual employees are being regularised on the basis of their seniority. It is also admitted that respondent No. 1/workman was regularised w.e.f 1st April, 1989 when his turn as per the seniority list of casual workers came. It is also not denied that workmen senior to him were regularised before to 1st April, 1989. If the date of regularisation of respondent No.1/workman is taken as 25th October, 1983 than many workers who were senior to him in the category of casual workers and regularised after 25th October, 1983 and before 1st April, 1989, would become his junior. This would be against the scheme of regularisation itself and would create industrial disharmony which is not the object of industrial adjudication. In fact, as pointed out above, whenever cases on behalf of casual employees have come to the court claiming regularisation on the ground that they are working for a long period and directions were given to regularise such workers, such regularisation has taken place from the date of direction given by the courts from the date when action is taken by the employer persuant to such directions. Pointed by respondent in fact, Supreme Court had given directions to the petitioner-MCD itself, in the case entitled Jeet Singh Vs. MCD, writ petition Nos. 840-841 of 1986 for framing of a scheme of regularisation. This judgment is quoted in Gainda Ram and others Vs. MCD and others (supra) which was relied upon by the respondent No. 1/workman himself during argument. A perusal of these judgments would show that although directions was given to regularise such workers who have been working for a number of years. There was no direction that they should be regularised from the date of initial appointment. On the contrary, direction was to regularise these persons against available post on the basis of seniority as is clear from the following observations of the Supreme Court in Gainda Ram’s case:-
“Learned counsel for the respondents points out that there are others similarly placed like the petitioners and if an order for regularisation is made, it should provide for regularisation giving preference to those who may be the senior most among the lot. In these circumstances, persons working as Clinic beldars be regularised against the 43 posts. We make it clear that such regularisation shall be on the basis of total length of service being taken into consideration. If there are others who are senior to the petitioners, they would be entitled to reference in the process of regularisation until the total number of 43 is exhausted and in case there is place to fill up, petitioners shall be regularised against the remaining posts. Those who are entitled to the benefit of the regularisation should have service benefits on the basis of the principle contained in the orders of this Court in W.P. Nos. 840-841/1986. Counsel for the respondents wants reasonable time to complete the process. Six months time is allowed. Such of the petitioners who are regularised will be entitled to salary on the normal monthly basis.”
25. Thus even in this case, regularisation was not from the date of initial appointment but against the sanctioned post and in order of seniority, it was specifically ordered that persons who are senior to the petitioners in the said case would be regularised first and the petitioners would be regularised only against the remaining post.
26. In the instant case, if respondent No. 1 workman is regularised w.e.f. 25 October, 1983 than the consequence would be contrary to the direction given by the Supreme Court in the aforesaid judgment as his regularisation would affect seniors to him who were regularised after 25th October, 1983 but before 1st April, 1989.
27. No doubt this court while exercising its power under Article 226 of the Constitutions of India examine the award passed by the IT is not sitting as an appellate authority and would not set aside the award on hyper-technical grounds but when it is seen, as in the instant case, the effect of the award is to disturb industrial peace and create disharmony and thereby making juniors as seniors and seniors as juniors and the findings of the Tribunal are based on irrelevant consideration unsustainable in law and are perverse. this court has ample power to interfere with such an award. No doubt, power of the Tribunal under the provisions of the Industrial Disputes Act are wide and it can even create rights but the same cannot be exercised in a manner which will create inequitable results. The petitioner is having scheme of regularisation, as and when post fall vacant, workers are regularised in accordance with their seniority. It is not disputed as aforesaid, that no junior to respondent No.1/workman was regularised before 1st April, 1989. In these circumstances, ignoring these aspects and directing regularisation of respondent No.1/workman from the date of his initial appointment which has the effect of upsetting the seniority list of other senior workmen who were regularised before respondent No.1 is clearly unsustainable and has to be struck down.
28. In view of the aforesaid discussion, award of the IT insofar as it directs regularisation of respondent No.1/workman w.e.f. 25th October, 1983 is hereby set aside. Respondent No. 1 will be deemed to be regularised in service from 1st April, 1989 only. Writ petition is allowed to the afore-said extent.
29. There shall be no order as to costs.