Prasad & Ors Vs. Delhi State Mineral Development Corporation  INSC
387 (15 December 1989)
K. Ramaswamy, K. Misra Rangnath Sawant, P.B.
1990 AIR 371 1989 SCR Supl. (2) 513 1990 SCC (1) 361 JT 1989 (4) 541 1989 SCALE
of India, 1950: Articles 39(d), 14 & 16:
rated workers of Delhi Mineral Development Corporation performing duties of
Group 'D' posts--Whether entitled to equal pay for equal work--Whether entitled
to regularisation and promotion.
Services: Daily rated workers discharging duties effectively over a long
period--Suitability of for regularisation and confirmation-Requirement of
initial minimum qualifications--Whether could be insisted upon.
petitioners, daily-rated workers of the respondent Corporation appointed
between 1983 and 1986, sought a writ of mandamus to regularise their services
in the respective units and payment of wages at par with regularly appointed
employees of the respondent performing the same or similar duties.
Industrial Tribunal, which was directed by the Court to examine the matter,
found that all the petitioners/workmen were performing same or similar duties
as were performed by the incumbents of Group 'D' posts of the respondent Corporation
and concluded that on the principle of 'equal pay for equal work' enshrined in
Article 39(d) read with Articles 14 and 16 of the Constitution they were
entitled to equal pay for equal work in relation to the regular employees. It
further held that non-regularisation due to uncertainty of the contract was
only a pretence which was not valid in law, and that reversion of some of the
petitioners for lack of requisite educational qualification was discriminatory,
arbitrary and an abuse of power by the management.
respondent assailed the findings on merits pointing out various contentions
raised in its pleading, objections and the documents filed before the Tribunal.
It also contended that it had not consented to dispense with adducing oral
evidence, and that despite the direction of the Court to submit a preliminary
report the Tribunal was wrong in 514 stating that the respondent had agreed
that the Tribunal would send the final report.
the writ petitions, the Court, Head l. The petitioners are entitled to equal
pay at par with the persons appointed on regular basis to the similar post or
discharge similar duties in the respondent-Corporation, and are entitled to the
scale of pay and allowances revised from time to time for the said posts.
statement of facts recorded by a Court or Quasijudicial Tribunal in its
proceedings as regards the matters which transpired during the hearing before
it would not be permitted to be assailed as incorrect unless steps are taken
before the same forum. It may be open to a party to bring such statement to the
notice of the Court/Tribunal and to have it deleted or amended, It was not,
therefore, open to the respondent in the instant case to say that the
proceedings recorded by the Tribunal were incorrect. [517C-D]
Practical experience would always aid a person to effectively discharge the
duties and is a sure guide to assess his suitability. The initial minimum
educational qualification prescribed for the different posts is undoubtedly a
factor to be reckoned with, but it is so at the time of the initial entry into
service. [517H;518A] In the instant case, the petitioners were appointed
between the period 1983 and 1986 and eversince, they have been working and had
gained sufficient experience in the actual discharge of duties attached to the
posts held by them. Once the appointments were made and they were allowed to
work for a considerable length of time as such, it would be hard and harsh to
deny them confirmation in the respective posts on the ground that they lack the
prescribed educational qualifications. Three years' experience ignoring
artificial break in service for short period/periods created by the respondent
in the circumstances, would be sufficient for confirmation. Since the petitioners
satisfy the requirement of three years' service so calculated, 40 of the
senior-most of them should be regularised with immediate effect and the
remaining 118 should be regularised in a phased manner before April 1, 1991 and
promoted to the next higher post according to the standing orders,
Those of the petitioners who were ousted from service pending 515 the writ
petitions to be reinstated immediately. [518D-E]
ORIGINAL JURISDICTION: Writ Petition Nos. 100 and 1078 of 1988.
Article 32 of Constitution of India).
H.N. Salve and Rajiv K. Garg for the petitioners.
Jain, Ashok Grover and S.C. Paul for the Respondent.
Judgment of the Court was delivered by K. RAMASWAMY, J. 1. The two writ petitions
raise common questions of fact and law and accordingly they are disposed of by
a common judgement.
petitioners in both the writ petitions are daily rated workers working in the
respondent-Corporation and they are seeking relief under Art. 32 of the
Constitution for a Writ of Mandamus or other directions to regularise their
services in the respective units and to pay them equal wages with initial basic
pay, D.A. and other admissible allowances at par with regularly appointed
employees of the respondent performing the same or similar duties. Admittedly,
they have been appointed on daily wages between 1983 and 1986 and they have
been working eversince. It is contended by them that despite their continuous
service respondent has resorted to unfair labour practice in creating
artificial break in service to deprive them of the benefit of continuous
service. As they are not being paid equal wages at par with regular employees,
this offends their right to equality of pay under Art. 14 and such action is contrary
to the provisions of Art. 39.
respondent had raised several disputed questions of fact which needed elaborate
investigation. This Court by its order dated January 27, 1989, after heating
the counsel on either side, directed the Industrial Tribunal at Delhi to
examine the contentions of the petitioners and the stand taken by the
respondent, on all issues after providing full opportunity to the parties of
hearing including leading of evidence, oral and documentary, and to make a
report to the Registry of this Court within six months. Pursuant to the above
direction, the Industrial Tribunal afforded reasonable opportunity to both
parties. It would appear that both parties agreed that oral evidence need not
be 516 adduced (though respondent is now disputing that fact), and both the
parties filed documentary evidence. The Tribunal held 12 sittings, heard the
counsel, considered the record and submitted its report dated September 15, 1989. The respondent has filed its
objections to the report.
have heard learned counsel for the petitioners and Shri R.K. Jain, learned
counsel for the respondent. The Tribunal found thus: "After taking into
consideration all the facts and circumstances I come to the conclusion that all
the petitioners/workmen are performing same or similar duties as are performed
by the incumbents of group 'D' posts of the DSMDC and consequently on the
principle of 'equal pay for equal work' enshrined in Art. 39(d) read with Arts.
14 and 16 of the Constitution, all these workmen-petitioners are entitled to
equal pay for equal work in relation to the regular employees." On the
question of the nature of the work being discharged by the petitioners, it
found that some of the workmen are shown to have been working with designations
such as Wages Slip, Truck Loading Clerk, Attendance Keeper Clerk, Drill Man,
Office Work, Stone Bricks Clerk Fitter Survey Section, Pipe Fitter, Operator,
Pump Operator, Creched Check Post Clerk, Permit Clerk etc., which go to suggest
that those workmen were performing skilled or semiskilled jobs or work of
clerical nature. 1t, therefore, suggested that the workmen with these
designations may also be equated with incumbents of group 'D' posts However, it
held that their scale of pay and the entitlement to the wages should be worked
out in an inquiry under section 33C(2) of the Industrial Disputes Act. It also
further found that since the petitioners have been appointed way back between
1983 and 1986, they are to be regularised; first 1/3rd of them immediately in
the pay scale of Rs. 196232 or the corresponding revised scale with allowances;
another one third of the petitioners-workmen to be regularised by April 1, 1990
and the remaining one-third to be regularised by April 1, 1991. The workmen are
entitled to one increment for every two completed years of their service
counted from the date of commencement of service under the Management and by
ignoring the artificial breaks created by the respondent.
also held that the dismissal of the workmen without following the rule of last
come first go is an unfair labour practice, arbitrary and discriminatory. It
also held that the justification for not regularising the service of the
petitioners, namely, unlikelihood of the extension of the mining lease after
its expiry was believed by the subsequent advertisement calling applications
for filling up the vacancies. Accordingly, it held that non-regularisation due
to uncertainly of the contract is only a pretence and is not valid in law. It
also held that 517 though some of the persons like S/Shri Chander Pal Pawar, Lok
Nath Rai and Dinesh Kumar are eligible to hold the post of Assistant Gr. III
and their reversion for lack of requisite educational qualification is
discriminatory, arbitrary and is an abuse of power by the Management.
Accordingly, it suggested the framing of a scheme for regularising the services
of all the petitioners.
R.K. Jain, learned counsel for the respondent, has vehemently assailed the
tenability of all the recommendations. It is his further contention that the
respondent did not agree to dispense with adducing oral evidence and despite
the direction of this Court to submit a preliminary report the Tribunal is
wrong in stating that the respondent agreed that the Tribunal would send the
final report. He disputed the findings on merits pointing out various
contentions raised by the respondent in its pleading, objections and the
documents filed before the Tribunal. It is now settled law that the statement
of facts recorded by a Court or Quasi-Judicial Tribunal in its proceedings as
'regards the matters which transpired during the hearing before it would not be
permitted to be assailed as incorrect unless steps are taken before the same
forum. It may be open to a party to bring such statement to the notice of the
Court/Tribunal and to have it deleted or amended. It is not, therefore, open to
the parties or the counsel to say that the proceedings recorded by the Tribunal
are incorrect. The further contention that the respondent did not agree to
dispense with the adduction of oral evidence and that the report should be the
preliminary report cannot be countenanced. Accordingly, we hold that it is no
longer open to the respondent to say that it has not consented to dispense with
adducing oral evidence and to the Tribunal submitting its final report instead
of a preliminary one as directed by this Court. During the pendency of these
writ petitions, 16 workmen were retrenched. Shri R.K. Jain, learned counsel
appearing for the respondent, has agreed that if there.is work and any of these
sixteen persons reports for duty, work shall be provided. This Court further
directed to pay the petitioners at the rate of Rs.25 per day.
main controversy centres round the question whether some petitioners are possessed
of the requisite qualifications to hold the posts so as to entitle them to be
confirmed in the respective posts held by them. The indisputable facts are that
the petitioners were appointed between the period 1983 and 1986 and eversince,
they have been working and have gained sufficient experience in the actual
discharge of duties attached to the posts held by them.
experience would always aid the person to effectively discharge the 518 duties
and is a sure guide to assess the suitability. The initial minimum educational
qualification prescribed for the different posts is undoubtedly a factor to be
reckoned with, but it is so at the time of the initial entry into the service.
Once the appointments were made as daily rated workers and they were allowed to
work for a considerable length of time, it would be hard and harsh to deny them
the confirmation in the respective posts on the ground that they lack the
prescribed educational qualifications. In our view, three years' experience,
ignoring artificial break in service for short period/periods created by the
respondent, in the circumstances, would be sufficient for confirmation. If
there is a gap of more than three months between the period of termination and
re-appointment that period may be excluded in the computation of the three
years period. Since the petitioners before us satisfy the requirement of three
years' service as calculated above, we direct that 40 of the senior-most
workmen should be regularised with immediate effect and the remaining 118
petitioners should be regularised in a phased manner, before April 1, 1991 and
promoted to the next higher post according to the standing orders.
the petitioners are entitled to equal pay at par with the persons appointed on
regular basis to the similar post or discharge similar duties, and are entitled
to the scale of pay and all allowances revised from time to time for the said
posts. We further direct that 16 of the petitioners who are ousted from the
service pending the writ petition should be reinstated immediately. Suitable
promotional avenues should be created and the respondent should consider the
eligible candidates for being promoted to such posts. The respondent is
directed to deposit a sum of Rs. 10,000 in the Registry of this Court within
four weeks to meet the remuneration of the Industrial Tribunal. The writ
petitions are accordingly allowed, but without costs.