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2007 DIGILAW 346 (DEL)

BALRAM v. M. C. D.

2007-02-19

HIMA KOHLI

body2007
JUDGMENT Rima Kohli, J. (Oral)-In this writ petition, the petitioners have assailed the award dated 2nd August, 2004 passed by the Presiding Officer, Industrial Tribunal (hereinafter referred to as the Tribunal) holding that the transfer of the petitioners was not illegal and that they were not entitled for regularization from the initial date of their appointment. With the aforementioned findings, the reference was answered against the petitioners and the award was passed accordingly. 2. A brief narration of the relevant facts is necessary. Vide reference dated 6th October, 1998, the dispute between the respondent and the petitioners was referred for adjudication to the Tribunal in the following terms: "(i) Whether transfer of Sh. Rajesh Kumar, Balram and Sanjay Sharma from Licensing Department to Horticulture Deptt. vide order dated 1 0.4.96 by the management is illegal, unjustified and/or mala fide and if so, to what reliefare they entitled and what directions are necessary in this respect. (ii) Whether non-regularisation of services of daily wages workmen S/Shri Rajesh Kumar, Balram and Sanjay Sharma on the post of Peon from their respective initial date of appointment in proper pay scale by the management is illegal and/or unjustified and, if so, what directions are necessary in this respect? 3. A statement of claim was filed on behalf of the petitioners claiming, inter alia, that the petitioners were transferred by the respondent illegally as they were working as Peons and had never worked as Beldars, and that the jobs of Peons and Beldars were quite different in nature. It was further stated before the Tribunal that there was no condition of service by which the petitioners could be transferred. Thus the petitioners in protest against their transfer, did not join the duties as Beldars in the Horticulture Department and remained unemployed since 10th April, 1996. With regard to the second terms of reference, it was submitted by the petitioners that they were treated as monthly paid/muster roll workers and were paid minimum wages; that they were entitled to regularization of services from the initial date of their joining. 4. The statement of claim of the petitioners was opposed by the respondent. It was submitted that the transfer of an employee is the prerogative of the respondent and the petitioners were transferred on the basis of exigencies of service as well as in the interest of administration. 4. The statement of claim of the petitioners was opposed by the respondent. It was submitted that the transfer of an employee is the prerogative of the respondent and the petitioners were transferred on the basis of exigencies of service as well as in the interest of administration. The petitioners were engaged as daily wagers to meet the exigencies of work and this in itself did not confer the status of permanent employees upon them. It was denied that the petitioners were initially appointed as Peons and it was submitted that despite the transfer orders dated 10th April, 1996 and several letters which were issued to the petitioners thereafter, they failed to resume their duties and abstained from joining the service. It was further submitted that the respondent had a proper policy for regularization of daily wagers in a phased manner based on availability of regular vacancies and funds. 5. After evidence was led and arguments were addressed by both the parties, the Tribunal concluded that there were no allegations levelled by the petitioners to the effect that their transfer from the Licensing Department to the Horticulture Department was with malajide intention and that as it was established from the evidence that the petitioners were working in the capacity of daily wage workers, to term them as Peons or daily wage Beldars would not have much relevance. As the respondent had taken a stand that there was no post of Peon to be filled on daily wage basis and only Beldars were appointed on daily wage basis, the Industrial Adjudicator held that there was nothing on the record to show that the transfer was done by the respondent contrary to law or Rules of the respondent and that the petitioners had been working on daily wage basis and thus their transfer was neither illegal or unjustified nor malajide. 6. 6. Insofar as the second issue was concerned, while relying on a judgment rendered by this Court in the case of Municipal Corporation of Delhi v. Gauri Shankar & Ors., reported as 1999 V AD (DELHI) 905, wherein it was held that only because a person is appointed on casual basis and has continued on casual basis for a long period, it does not follow there from that there was a substantive post available and that a permanent post would come into existence only when it is created by a competent authority or held by a regular incumbent and vacated by him on retirement, resignation, death, etc. In the aforesaid case, it was observed that from the very fact that there was a scheme of regularization as per which casual workers were to be regularized on the basis of their seniority as and when post became available and the work was regularized on his turn, it could be reasonably inferred that the respondent workman was not engaged against any permanent or substantive post. Relying on the aforementioned judgment, the Tribunal concluded that the claimants/petitioners herein were not entitled for regularization from the date of their initial appointment. The aforesaid award has been assailed by two of the three workmen who were parties before the Tribunal. 7. Learned Counsel for the petitioners asserts that though the petitioners were initially appointed as daily wage employees, they performed duties as Peons. Reliance has been placed on two Office Orders (Ex.WW-1/4 and Ex.WW-1/5) to contend that the petitioners were working as daily wage Peons. It is further submitted by the learned Counsel that the respondent has flouted the provisions of Section 9A of the Industrial Disputes Act, 1947, which stipulates that without giving a notice of change in conditions of service applicable to any workmen, no employer shall effect such a change. It is further submitted that the petitioners were working as Peons and that transferring them from Licensing Department to Horticulture Department was illegal and not permissible, as the post of Beldar carries nature of work that is different from that of Peons and the order of transfer amounted to changing the designation and service conditions of the petitioners. It is also submitted that the respondent failed to produce any attendance register or other documents and evidence to establish that the petitioners were performing their duties as Beldar and not as Peons. It is also submitted that the respondent failed to produce any attendance register or other documents and evidence to establish that the petitioners were performing their duties as Beldar and not as Peons. Finally, it is submitted that since the petitioners were performing duties against posts that are regular and permanent in nature and that the same are identical to and of the same value as being performed by their regular counterparts, the Tribunal erred in refusing to regularize them from the date of their initial engagement. 8. Learned Counsel for the respondent, who has appeared on advance notice, vehemently opposes the writ petition and submits that the petition is highly belated and is liable to be rejected on the ground of delay and laches alone. He submits that the petitioners were served with the transfer order on 10th April, 1996 which they refused to obey and unilaterally stopped reporting for work. Thereafter, they raised a dispute after two years, in the year 1998 and an award was passed on 2nd August, 2004 which has been assailed after two and a half years without giving any sufficient cause for the said delay. On merits, it is submitted that the respondent did not terminate the services of the petitioners; they were only transferred by the respondent from one Department to the other within the MCD and that the petitioners themselves chose not to report to the Department despite several reminders to them. It is further stated by the learned Counsel that there" were sufficient evidence adduced by the respondent before the Tribunal to demolish the claim of the petitioners and to prove that their transfer from one Department to the other was made purely on the basis of administrative exigencies of service, which the respondent is entitled to do in public interest. It is further submitted that the, petitioners were appointed as daily wage Beldars, that they were never engaged on the post of Peon and they did not acquire the status of permanent employees while they were working as daily wage workers. 9. I have heard the learned Counsel for the parties. I have also perused the records, including the pleadings of the parties and the impugned award. 10. There is no gainsaying the fact that a management is entitled to transfer an employee from one Department to the other as per its requirements and exigencies of service. 9. I have heard the learned Counsel for the parties. I have also perused the records, including the pleadings of the parties and the impugned award. 10. There is no gainsaying the fact that a management is entitled to transfer an employee from one Department to the other as per its requirements and exigencies of service. Therefore, the order of the management to transfer the petitioners from the Licensing Department to the Horticulture Department vide order dated 10th April, 1996 is neither contrary to law or the Rules of the management nor have any such Rules or law been placed on the record by the petitioners, to show that any illegality was committed by the respondent. Further, there are no allegations of mala fides made by the petitioners against the respondent with regard to the said transfer. It is a settled law that the Courts shall not normally interfere in matters of transfer except in cases where the petitioner is able to show mala fides on the part of the employer. Present case is merely of a transfer from one Department to the other, within the MCD. There is no reason for interference in the impugned award and the findings given therein, with regard to the first issue. 11. On the second issue also, it has been held in a number of judgments that a person who is appointed on a casual basis and continues on such basis for a long period of time, does not automatically become entitled to appointment on a substantive post. A permanent post is required to be filled up in accordance with the relevant Rules and Regulations and after fulfilling requisite qualifications, as stipulated in the Recruitment Rules. In view of the judgment rendered by the Supreme Court in the case of Secretary, State of Karnataka v. Umadevi, reported as (2006) 4 SCC 1 , it is now a settled position of law that merely because a person has been employed on temporary, casual, ad hoc or daily wage basis, and has continued on such post for some time, it does not give him a right to be regularized on such post, and also that recruitment to public employment cannot be made by bypassing the constitutional scheme, and should strictly be done in compliance with the Recruitment Rules to the post. 12. 12. Reliance may also be placed on the case of Municipal Corporation of Delhi v. Gauri Shankar (supra) wherein it has been held by this Court that 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 that the said person has been working against a permanent post. 13. In the present case, therefore, merely because the petitioners claim that they were engaged as daily wage Peons with the respondent, will not entitle them to claim appointment/ regularization in the said post without following the due process of law. More so when the respondent itself admits that there is a scheme of regularization under which the respondent has been regularizing daily wage rated workmen in a phased manner, subject to the availability of regular vacancies and funds. 14. So far as the contention of the petitioner regarding violation of Section 9A of the Industrial Disputes Act, 1947 is concerned, the same does not hold much water. In the present case, there were no conditions of service attached to the post of Beldars, and therefore, there could be no change in any conditions of service. As such Section 9A of the Industrial Disputes Act, 1947 is not applicable to the facts of the present case. Even otherwise, as per Section 9A of the Industrial Disputes Act, 1947, the employer is required to give notice of the change in conditions of service to the workmen, only in cases where such conditions of service are specified in the Fourth Schedule of the Industrial Disputes Act, 1947. However, this is a case where the petitioners have only been transferred from one post to the other, and since the same is not covered by the Fourth Schedule of the Industrial Disputes Act, 1947, there is no violation of Section 9A of the Act. 15. In this view of the matter, even on the second issue, the Tribunal rightly arrived at the conclusion that the petitioners are not entitled to any relief for regularization from the initial date of their appointment. It may also be noted that the petitioner have shown complete lack of diligence in pursuing their legal remedies. 15. In this view of the matter, even on the second issue, the Tribunal rightly arrived at the conclusion that the petitioners are not entitled to any relief for regularization from the initial date of their appointment. It may also be noted that the petitioner have shown complete lack of diligence in pursuing their legal remedies. Against a cause of action, which according to the petitioners accrued in 1996, they raised a dispute after 2 years, in 1998 and by way of the present petition, they have challenged an award passed about two and a half years ago. The petitioners claim that they could not file the present petition because of un employment and lack of financial capacity. The said explanation furnished for seeking condonation of delay is also very flimsy, sketchy and unsatisfactory. For the reasons stated hereinabove, it is held that the impugned award does not suffer from any infirmity or perversity, so as to warrant any interference by this Court. The writ petition is, therefore, dismissed. Writ Petition dismissed.