ORDER
A.K. Sikri, J.
1. These are four Writ Petitions which are filed against the Awards passed by the Industrial Tribunal. All these petitions are filed by same Union, namely., Municipal Employees Union. It had raised Industrial Dispute in respect of the concerned workmen in all these cases where the relief sought was of regularisation of these workmen from the initial date of their engagement on daily wage basis. In all the Awards the Industrial Tribunal (s) have denied this relief holding that these workmen are not entitled to regularisation from the date of their initial appointment. Thus same question of law arises in all these cases which are, therefore, disposed of by this common judgment.
2. It is an admitted position that MCD has framed scheme for regularisation of the daily rated workmen and the such daily rated workers are being regularised in terms of the said scheme as per the seniority list maintained for such daily rated workers on the occurrence of regular vacancies. These workers are, therefore, not entitled to claim the regularisation w.e.f. initial dates of their engagements on daily wage basis. The Awards given in all these cases are well reasoned and based on settled legal position. In fact this very point has already been discussed and dealt with in detail in the case of Municipal Corporation of Delhi Vs. Gauri Shanker reported in 1999 V AD (DELHI) 905 against the petitioner. Relevant portion of the judgment is quoted below:
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 aspect. Fact remains that respondent/workman 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 his 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 properly 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 these 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”.
3. The contention of the petitioner that in view of the provisions of Clause (b) of Model Standing Orders framed under industrial Employment (Standing Order) Act,1946, the workman be treated in regular service from the date of initial appointment can also not be accepted. In one of the Awards, which is challenged in CWP. No. 3654/1997, this contention is dealt with by the Industrial Tribunal in the following manner:
8. “The contention of the workman is that since he has been regularly working with the management for a number of years he should be treated as being regular in service from the initial date of appointment. The said plea of the workman is based on provisions of Clause (b) of Model Standing Orders framed under Industrial Employment (Standing Order) Act, 1946 which defines a permanent workman as a person who has been engaged on permanent basis and includes any person who has satisfactorily completed the probation period of permanent service in the same or another occupation in the industrial establishment. According to the said provision a person becomes a permanent employee when either he has been employed on permanent basis or he/she should be on probation for three months Clause 2(c) of the above Model Standing Orders defines a probationer as a workman who is provisionally employed to fill a permanent vacancy in a post. It is, there fore, clear that under Clause 2(b) of Model Standing Orders framed under Industrial Employment (Standing Order) Act,1946 a permanent workman is one who is either appointed permanently or who is provisionally employed to fill a permanent vacancy. It is admitted case of the workman that he has employed on daily wages on Muster Roll and, therefore, since workman was never employed either on permanent basis or on probation, she cannot claim to have become permanent or regular under Clause 2(b) of Model Standing Order framed under Industrial Employment (Standing Order) Act, 1946.
9. The learned AR of the workman also argued that since workman continued on daily wages with the management for a number of years it shows that management is indulging in unfair labour practices. Under 5th Schedule of Industrial Disputes Act to employ workman as Badlis, Causal or Temporary and to continue them as such for years with the object of depriving them of status and privileges or a permanent workman amounts to unfair labour practices. Even if for the sake of argument, it is admitted that management is indulging in unfair labour practices for the said misconduct, the management may be liable for prosecution under Section 25(u) of the I.D. Act but this fact by itself will not be a ground to treat the workman as permanent after some months of service. It appears that employees continue to be on daily wages for years not because management wants to deprive the workman of permanent status but because of defective administration system of the management and because of lack of sufficient available permanent posts with the management and because of financial constraint. I think, it will be proper for the management to avoid further complications to take stock of its temporary vacancies and make all such vacancies which have continued for three years or more as permanent.
10. It is, therefore, clear that contention of the workman that he has become permanent either because of Clause 2(b) of Model Standing Order framed under Industrial Employment (Standing Order) Act, 1946 or because management is indulging in unfair labour practices cannot be accepted and on these grounds workman cannot claim to be regular in service either from the initial date of appointment or after three months of appointment on daily rated basis as Muster Roll employee”.
11. The view taken by the Industrial Tribunal is correct and I agree with the same. The writ petitions are, accordingly, dismissed.