MCD vs Tarawati

Hon''ble Ms. Justice Mukta Gupta

By the present petition, the Petitioner assails the award passed by the Industrial Tribunal No. 1, Room No. 2, Karkardooma Courts, Delhi in ID No. 91/2007 on 20th February, 2008 whereby the Respondent was directed to consider the case of the regularization of the workman as per policy. It was held that the workman was entitled to 50% of wage as per Minimum Wages Act, 1948 from the date of her initial appointment and the Respondent was directed to pay 50% of wage to the workman as per the Minimum Wages Act, 1948 after deducting the actual amount paid. I have heard learned counsel for the Petitioner and perused the counter affidavit filed by the Respondent.

The facts leading to the filing of the present petition are that the Respondent raised a dispute which was sent for adjudication to the learned Tribunal with the following terms of reference:

Whether the demand for regularization of Smt. Tara Wati w/o Sh. Mahinder Singh as full time Safai Karamchari in proper pay scale from the date of her initial appointment along with consequential benefits including difference of salary is justified and if so, what directions are necessary in this respect?

In the statement of the claim the Respondent stated that she was employed with the Management on 15th February, 1985 as full time Safai Karamchari with MCD at its Maternity Centre at Hari Nagar. At the time of filing of the claim she was working at IEC Cell, Sector-7, Rohini and receiving the salary from Hari Nagar Centre. Her last drawn wages was Rs.560/- per month. She was discharging the duties of Safai Karamchari from 9.00 a.m. to 3.00 p.m. It is further contended that her counter parts were treated as regular employees and were being paid their salary in proper pay scale. The Petitioner in its written statement refuted the claim of the Respondent and stated that the Respondent was engaged as a part time Safai Karamchari on a fixed amount of Rs. 560/- per month at maternity home. It was stated that she worked only for four hours per day as Safai Karmachari and cannot claim parity with full time Safai Karamchari who were engaged as per the Recruitment Rules, were full time employees of the Management and paid accordingly. The Respondent being part time employee was not covered under the policy of regularization. The parties led their evidence. The Respondent examined herself whereas the Management examined three witnesses. The Respondent in her cross-examination admitted that she was working part time on a consolidated salary of Rs. 560/-.

On considering the evidence on record the learned Tribunal observed that the Petitioner in its written statement and oral evidence had admitted that the Respondent was doing the duty for four hours in a day and only regular employee gets wages as per the Minimum Wages Act who works for eight hours. By the impugned award the learned Tribunal directed the Petitioner to consider the case of regularization of the workman as per the policy and also directed that the Respondent was entitled to 50% of the wages as per the Minimum Wages Act, 1948 from the date of her initial appointment and directed the management to pay the 50% wages after deducting the actual amount paid.

As regards the direction to consider the case of the Respondent for regularization I find no infirmity in the order passed by the learned Tribunal as the said direction was subject to the Policy of the Petitioner itself, as the Petitioner was otherwise bound to consider the case of the Respondent for regularization in case she falls within the policy. As regards the payment of 50% wages as per the Minimum Wages Act, 1948 the claim of the Petitioner is that the minimum wages are given only to daily rated employees who work for eight hours. It is in this context that the Trial Court had directed 50% wages as per the Minimum Wages Act because it is the case of the Petitioner itself that the Respondent was working for four hours a day, that is, half the time. Thus, she was entitled to at least 50% wages as per the Minimum Wages Act from the date of her initial appointment.

Learned counsel for the Petitioner has strenuously contended that relief of 50% back wages was beyond the terms of reference and was also not an issue incidental thereto, thus the impugned order is beyond jurisdiction. Section 10(4) ID Act states:

Reference of dispute to Boards, Courts or Tribunals

(4) Wherein an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the tribunal or the National Tribunal, as the case may be,] shall confine its adjudication to those points and matters incidental thereto.

Section 10(4) ID Act permits adjudication of issues that are incidental in nature besides consequential issues. In the present case though the issue of entitlement of pay on regularization was a consequential issue, however the issue of grant of appropriate pay for the period when the Respondent was not regularized is an incidental issue. Thus, the learned Trial Court committed no error in awarding 50% of the minimum wages to the Respondent. I find no infirmity in the impugned award. Petition and application are dismissed.