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NORTH DELHI MUNICIPAL CORPORATION vs SHRI GAJ RAJ SINGH

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 15th May, 2024
Pronounced on: 4th July, 2024

+ W.P.(C) 2990/2017 & CM APPL. 13095/2017
EAST DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Kumar Rajesh Singh, Advocate

versus

SIROMAN SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 10674/2021 & CM APPL. 32911/2021
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

SH. RAJBIR SINGH & ANR. ….. Respondents
Through: Ms.Aakanksha Kaul and Mr.Satya Sabharwal, Advocates for UOI

+ W.P.(C) 14028/2021 & CM APPL. 44258/2021
EAST DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Kumar Rajesh Singh, Advocate

versus

ANAND PAL ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 6044/2017
SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Rajan Tyagi, Ms.Vijeta Mukherjee, Mr.P.R. Wadhwa and Mr.Samar Partap Singh, Advocates
versus

ASHOK KUMAR & ANR ….. Respondents
Through: Ms.Urvi Mohan, Advocate for GNCTD

+ W.P.(C) 8891/2019 & CM APPL. 36675/2019, CM APPL. 1039/2020, CM APPL. 8516/2020, CM APPL. 14789/2020, CM APPL. 1068/2022

SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay Singh, Advocates
versus

DHEER SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 6104/2017 & CM APPL. 25322/2017 & CM APPL. 25325/2017

SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Rajan Tyagi, Ms.Vijeta Mukherjee, Mr.P.R. Wadhwa and Mr.Samar Partap Singh, Advocates
versus

RAM KISHAN & ANR ….. Respondents
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 8986/2017 & CM APPL. 36774/2017
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

DHARAMVIR SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 13547/2018 & CM APPL. 52775/2018
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

BALAK RAM ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 13609/2018
SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay Singh, Advocates
versus

ZILE SINGH & ANR. ….. Respondents
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 13610/2018

SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay Singh, Advocates
versus

SATPAL ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 4413/2019
SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay Singh, Advocates
versus

SATISH KUMAR & ANR ….. Respondents
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 4967/2019
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD
versus

SHRI DHARM PAL AND ORS. ….. Respondents
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 6992/2019
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

SUKHPAL ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 7973/2019
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

SOHAN PAL ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 8672/2019 & CM APPL. 35814/2019
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

SH. JAIVINDER SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 8990/2017 & CM APPL. 25955/2018
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

SUSHEEL KUMAR ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 9180/2017 & CM APPL. 40448/2017 & CM APPL. 918/2018

NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

KRIPAL SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 9837/2017 & CM APPL. 40040/2017
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

ASHOK KUMAR ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 6791/2018
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

SHRI RAJ SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 8359/2018 & CM APPL. 3089/2019
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

LATE SHRI CHUNNI LAL ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 9225/2018
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

HARI LAL ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 11589/2017
EAST DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Kumar Rajesh Singh, Advocate

versus

SH. NABAB SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 8471/2018 & CM APPL. 32551/2018
SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Rajan Tyagi, Ms.Vijeta Mukherjee, Mr.P.R. Wadhwa and Mr.Samar Partap Singh, Advocates
versus

NETAR PAL AND ANR. ….. Respondents
Through: Mr.Vikas Chadha, Mr.Rahul Saini, Mr.Amit Bhati, Ms.Devanjali Chadha & Mr.Anil Kumar, Advocates for R-1

+ W.P.(C) 1330/2019
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Pooja Chandra, Mr.Sumeet Kaul and Ms.Jyoti Khurana, Advocates

versus

JAI PAL SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 8716/2019 & CM APPL. 36041/2019
SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Arun Birbal and Mr.Sanjay Singh, Advocates

versus

SHRI AJEET SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 10020/2019
SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Arun Birbal, Mr.Sanjay Singh and Mr.Varun Gupta, Advocates

versus

NIRANJAN SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 10021/2019
SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Arun Birbal, Mr.Sanjay Singh and Mr.Varun Gupta, Advocates

versus

MOHAN LAL ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 11911/2019
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

SHRI DHARAMVIR SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 11915/2019
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

SHRI GAJ RAJ SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 1989/2020 & CM APPL. 6948/2020 & CM APPL. 18798/2020

NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

SH. KHEM CHAND ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 5455/2020
NORTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Ms.Namrata Mukim, Standing Counsel for MCD

versus

MUNISH CHAND AND RAMESH CHAND ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 8138/2020
SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Arun Birbal, Mr.Sanjay Singh and Mr.Varun Gupta, Advocates
versus

RAJENDER SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

+ W.P.(C) 9221/2020 & CM APPL. 29749/2020
SOUTH DELHI MUNICIPAL CORPORATION ….. Petitioner
Through: Mr.Arun Birbal, Mr.Sanjay Singh and Mr.Varun Gupta, Advocates

versus

PREM SINGH ….. Respondent
Through: Mr.__, Advocate (Appearance not given)

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

J U D G M E N T

CHANDRA DHARI SINGH, J.
1. The present batch of petitions under Article 226 of the Constitution of India is arising out of various awards of the learned Industrial Tribunal, wherein, the claims of the respondent workmen in the respective petitions were decided in their favour and against the petitioner, i.e., East Delhi Municipal Corporation of Delhi, North Municipal Corporation of Delhi and South Municipal Corporation of Delhi (now merged and called as Municipal Corporation of Delhi) (hereinafter “MCD”). In all the petitions, a separate award has been passed by the learned Industrial Tribunal holding the workman/claimant who initially joined at the post of ‘Mali’ entitled to the pay scale meant for the post of ‘Garden Chaudary’ for the period the concerned workman worked as a Garden Chaudhary. For reference, a table has been drawn herein below which states the particulars of respective petitions:
S No.
W.P No.
Relief
1.
1330/2019
In view of the discussions made herein above, it is held that the workman herein, Shri Jaipal Singh is entitled to the pay scale of Garden Chaudhary with effect from 01.04.1989 and as a corollary, management is liable pay the difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947 for publication.
2.
1989/2020
In view of the discussions made herein above, It is held that Shri Khem Chand, the workman herein. Is entitled to the pay scale of Garden Chaudhary with effect from 18.08.1993 till 27.07,2009, the date workman was promoted as Garden Chaudhary and as a corollary, management is liable pay the difference of wages of mail vis-à-vis garden Chaudhary From the date when the workman herein was performing duties and functions of garden Chaudhary till the date he was promotes as garden Chaudhary, i.e 18.08.1993 till 27.07.2009. An award is accordingly passes. Let this award be sent to the appropriate government, as required under section 17 of the industrial Disputes Act, 1947, for publication.
3.
2990/2017
In view of the entire facts and circumstances of the case, it is
held that the workman is entitled for the pay scale of Rs.950-1500/- (revised from time to time) meant for Garden Chaudhary w.e.f. 01.04.1991 till date. Issue no.2 of the reference is decided accordingly in favour of the Workman. Award is passed accordingly, in these terms.
4.
4413/2019
As a sequel to my above discussion, it is held that Shri Satish Kumar and Shri Radhey Shyam Sharma, the claimants herein, are entitled to the pay scale of Garden Chaudhary with effect from 15.01.2000 and 01.07.1996 respectively and as a corollary, management is liable pay the difference of wages of mali vis a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary till 04.03.2014. Further the claimants are also entitled to be promoted to the post of Garden Chaudhary from 04.03.2014, i.e. the date when their juniors were promoted as regular Garden Chaudhary. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.
5.
4967/2019
As a sequel to my above discussion, it is held that Shri Dharam Pal, Shri Anand, Shri Mahender Singh and Shri Manoj Kumar, the claimants herein, are entitled to the pay scale of Garden Chaudhary with effect from 01.01.1994, 01.01.1999, 01.01.2000 and 18.01.2000 respectively and as a corollary, management is liable pay the difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary, The claimer’s are also entitled to be promoted to the post of Garden Chaudhary from 04.03.2014, i.e the date when his juniors were promoted as regular Garden Chaudhary. Further, case of the claimants Shri Balak Ram and Shri Jasbir Singh have already been granted relief vide separate awards, filed by them separately. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.
6.
5455/2020
As a sequel to my above discussion, it is held that Shri Munesh Chand and Shri Ramesh Chand, the claimants herein, are entitled to the pay scale of Garden Chaudhary with effect from 01.09.2001 and 21.05.2002 respectively and as a corollary, management is liable pay the difference of wages of mali vis-à-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary. The claimants are also entitled to be promoted to the post of Garden Chaudhary from 04.03.2014, i.e. the date when his juniors were promoted as regular Garden Chaudhary. An award is, accordingly, passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.
7.
6044/2017
As a sequel to my discussion made hereinabove. It is held that
the Workman Shri Ashok Kumar was doing the work of garden supervisor since 17.07.1998 and from that date he Is entitled to the wages of garden Chaudhary and is corollary, management’s libel pay the difference of wages of Mali vis-a-vis garden Chaudhary from the date when the Workman herein was performing duties and functions of garden Chaudhary. And award is accordingly passed. Let this award be sent to the appropriate government, as required under section 17 of the Industrial Disputes Act 1947, for publication.
8.
6104/2017
In view of the entire facts and circumstances of the case, it is held that the workman is entitled for the pay scale of Rs.3050-4590/- (revised from time to time) for Garden Chaudhary w.e.f. 01.01.2001 with all consequential benefits till he looked after the work of Chaudhary with the Management. Issue no.4 of the reference is decided accordingly in favour of the Workman.
9.
6791/2018
Since the claimant is officiating on the post of Garden Chaudhary since 01.01.1997, as such, he is entitled to the pay scale of Garden Chaudhary with effect from 01.01.1997. As a corollary, management is liable pay the difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary. An award is, accordingly, passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.
10.
6992/2019
In view of this, the reference is partly allowed in favour of the workman. Workman is entitled to get pay-scale &other consequent benefits for the post of Garden Chaudhary w.e.f. 09/06/15 management is directed to grant pay-scale of Garden Chaudhary to workman from 09/06/15. Award is passed accordingly.
11.
7973/2019
Thus, it is held that workman is entitled to the difference of wages of the posts of Garden Chaudhary and Mali for the period w.e.f. 01.06.1993 till 27.11.2008. Issue no. 4 as per terms of reference is decided accordingly. Award is passed in these terms and reference is answered accordingly.
12.
8138/2020
Thus, it is held that the workman is entitled to the difference of wages of the posts of Garden Chaudhary and Mali for the period w.e.f. 01.02.1999 till28.11.2008. Issue Nos.3 and 4 are decided accordingly.
13.
8359/2018
As a sequel to my above discussion, it is held that Shri Chunni Lai, the claimant herein is entitle to the pay scale of Garden Chaudhary with effect from 02.02.1999 and as a corollary management is liable pay the difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhry till 02.05.2016, i.e. the date of his death further the claimant is also entitle to be promoted to the post of Garden Chaudhary form 04.03.2014 i.e. the dated when his juniors were promoted as regular Garden Chaudhary. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Dispute Act, 1947, for publication.
14.
8471/2018
In view of the discussions made herein above, it is held that the workman is entitled to the pay scale of Garden Chaudhary with effect from 16.07.1997 and as a corollary, management is liable pay the difference of wages of mali vis-à-vis Gardan Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.
15.
8672/2019
In view of the entire facts and circumstances of the case, it is held that the workman is entitled for the pay scale of Rs.3050-4590/- (revised from time to time) meant for Garden Chaudhary w.e.f. 01.01.1997 till the date, he worked as Chaudhary, Issue no.5 of the reference is decided accordingly in favour of the Workman.
16
8716/2019
The copy of sponsorship is annexed as Annexure-G with the statement of claim as the workman is the member of MCD General Mazdoor Union (Regd. &Recognized) and copy of the Registration is annexed as Annexure- H, Copy of the letter to negotiate with the management is annexed as Annexure -I and copy of the list of Office bearers is annexed as Annexure- J. In view of the above, this Hon’ble Tribunal may kindly allow the salary of Garden Chaudhary as the workman has been performing their duty in the pay scale of Rs. 3050-4590 w.e.f 16.6.1997 alongwith all consequential benefits.
17.
8891/2019
It is therefore held that Shri Dheer Singh, the claimant herein, is entitled to the pay scale and all allowances except increment with effect from 01.01.1991 to December 2001, i.e. difference in the pay scale of mali and Garden Chaudhary and with effect from 17.10.2008, i.e. difference in the pay scale of mali and Section Officer, as per policy of ‘Equal Pay for Equal Work’. Further, Shri Dheer Singh is entitled for regularization in the pay scale of Section Officer in regularized category with effect from 17.10.2008 onwards with all consequential benefits. An award is, accordingly, passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.
18.
8986/2017
In view of the discussions made herein above, it is held that the workman is entitled to the pay scale of Garden Chaudhary with effect from January 1990 and as a corollary, management is liable to pay the difference of ages of mali vis-à-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary till date. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.
19.
14028/2021
In view of the discussions made herein above, it is held that Shri Anand Pal, the workman herein, is entitled to the pay scale of Garden Chaudhary with effect from April 1999 and as a corollary, management is ‘liable pay the difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary, i.e. 01.04.1999, till date.. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under section 17 of the Industrial Disputes Act, 1947, for publication.
20.
13610/2018
In view of the discussions made herein above, It is held that the workman herein, Shri Satpal is entitled to the pay scale of Garden Chaudhary with effect from 01.08.1993 and as a corollary, management is liable pay the difference of wages of mall vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Dispute act, 1947, for publication.
21.
13609/2018
In view of the discussions made herein above, it is held that the workman. Shri Zile Singh is entitled to the pay scale of Garden Chaudhary with from 01.11.1999 and as a corollary, management is liable pay this difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhari. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act 1947 for publication.
22.
13547/2018
In view of the ratio of law discussed hereinabove, it is held that the workman herein, Shri Balak Ram is entitled to the pay scale of Garden Chaudhary with effect from 01.01.2006 and as a corollary, management is liable to grant promotion of Garden Chaudhary in the pay scale of Rs.5200-20200 from the date when the workman herein was performing duties and functions of Garden Chaudhary. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947.
23.
11915/2019
Thus, it is held that workman is entitled to the difference of wages of the posts of Garden Choudhary and Mali for the period w.e.f. 01.01.2001 till 28.11.2008. Issue no.2 is decided accordingly.
24.
11911/2019
As a sequel to my above discussion, it is held that Shri Dharamvir Singh, the claimant herein, is entitled to the pay scale of Garden Chaudhary ‘ with effect from 01.03.2003 and as a corollary, management is liable pay the difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary. Further the claimant is also entitled to be promoted to the post of Garden Chaudhary from 04.03.2014, i.e the date when his juniors were promoted as regular Garden Chaudhary. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947.
25.
11589/2017
Perusal of evidence makes it crystal clear that evidence of workman is reliable, credible and required evidence in this case. While evidence of management not at all sufficient to rebut the evidence of workman. So this Tribunal has no option except to decide the reference in favour of workman and against management. Which is accordingly decided. And claim statement is allowed. Management is directed to grant salary of Garden Chaudhary to workman Sh. Nabab Singh since 01.01 .2001 along with all consequential benefits. Compliance has to be done by management within 2 months after expiry of period of available remedy against the instant Award.
26.
10674/2021
This Court is of the view that when it has been proved on record by workman through documents that he has worked as Chaudhary since from 1.1.1994, his claim for the wages to the said post of Chaudhary cannot be rejected. The respondent is directed to examine the case of the claimant in the pay scale of Chaudhary as on 1.1.1994 and awarding the amount of arrears within a period of 6 (six) months.
27.
10021/2019
The reference be and the same is answered in favour of the workman and it is directed that the workman is entitled to the pay scale of Garden Chaudhary i.e. Rs 3050- 4590, revised from time to time w.e.f. 12.02.1999 alongwith all consequential benefits. The management is thus directed to revise the current pay of the workman accordingly and pay the arrear to him accruing between 12.02.1999 to 04.03.2014 when he was promoted as Garden Chaudhary within 3 months from the date when this award would.
28.
10020/2019
herein, Shn Niranjan Singh is entitled to the pay scale of Garden Chaudhary with effect from 01.01.2001 and as a corollary, management is liable pay the difference of wages of mail vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary, i.e. from 01.01.2001 till 03.03.2014 and is entitled to be promoted as Garden Chaudhary under the quota with effect from 04.03.2014, the date when juniors to the claimant was promoted in the said category. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act, 1947, for publication.
29.
9837/2017
As a sequel to my above discussion, it is held that the Shri Ashok Kumar, the claimant herein, it is held that the workman Shri Ashok Kumar was doing the work of Garden Supervisor since 01.06.2002 and from that date he is entitled to ‘ the wages of Garden Chaudhary and as a corollary, management is liable pay the difference of wages of mall vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary and he be promoted as Garden Chaudhary under promotional quote with effect from 04.03.20** date his juniors were promoted in the said category. An award is accordingly passed. Let this award be sent to the appropriate Government, as required under Section 17 of the Industrial Disputes Act 1947.
30.
9225/2018
Since the workman was officiating on the post of Garden Chaudhary since 01.04.1989, as such, he is entitled to the pay scale of Garden Chaudhary with effect from 01.04.1989. As a corollary, management is liable pay the difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary, i.e. from 01.04.1989 till the date of his retirement on 30.06.2014. An award is, accordingly, passed.
31.
9221/2020
In view of the discussions made herein above, it is held that the workman herein, Shri Prem Singh is entitled to the pay scale of Garden Chaudhary with effect from 03.09.2014 and as a corollary, management is liable pay the difference of wages of mali vis-a-vis Garden Chaudhary from the date when the workman herein was performing duties and functions of Garden Chaudhary till the date he was promoted as Garden Chaudhary, i.e, from 16,11.1999 to 03,09,2014, An award is accordingly passed.
32.
9180/2017
In view of the entire facts and circumstances of the case, it is held that the workman is entitled for the pay scale of Rs.3050-4590/- (revised from time to time) meant for Garden Chaudhary w.e.f. 01.01,1997 till he was appointed as Garden Chaudhary after passing the trade test.
33.
8990/2017
In view of the entire facts and circumstances of the case, it is held that the workman is entitled for the pay scale of Rs.3050-4590/- (revised from time to time) meant for Garden Chaudhary w.e.f. 01.01.1998 till he looked after the work of Chaudhary with the Management.
2. Since the facts and the legal issues involved in the present batch of petitions are similar, this Court has culled out the facts and submissions out of the writ petition bearing W.P (C) no. 2990/2017 for the disposal of the present batch of petitions.
FACTUAL MATRIX
3. The instant petition has been filed on behalf of the petitioner seeking quashing of the award dated 29th February, 2016 (hereinafter “impugned award”) by the learned Presiding Officer, Industrial Tribunal, Karkardooma Courts, New Delhi in case bearing ID no. 25/13 (238/16).
4. It has been stated that the workman was employed as a ‘Mali’ with the petitioner department w.e.f. 1st April, 1989 at the pay scale of Rs. 750/- – 940/- revised from time to time.
5. In the year 2013, the respondent workman raised a dispute before the appropriate government that he was not being paid as per the pay scale prescribed for the post of Garden Chaudhary despite working at the said post w.e.f. 1st April, 1991.
6. Upon failure of conciliation proceedings, the appropriate government referred the dispute to the learned Industrial Tribunal for adjudication in terms of the following reference:
“Whether Sh. Siroman Singh S/o Sh. Inderpal Singh is entitled to the status of Choudhary in the pay scale of Rs.950-1500/- w.e.f. 01.01.1991, revised from time to time along with the consequential benefits and if so, to what relief is he entitled and what directions are necessary in this respect?”

7. The respondent workman filed his statement of claim stating that he was initially employed on the post of Mali in the Central Zone and is presently posted at Shahdra South Zone under the Deputy Director of Horticulture, Shahadra South Zone as the Garden Chaudhary. Despite this, he has not been paid as per the pay scale he is eligible for. The petitioner department filed its written statement denying the workman’s claim and after the completion of pleadings, the learned Tribunal framed the following issues for adjudication:
“1. whether present dispute is an Industrial Dispute as defined in section 2(k) of the Industrial Disputes Act? OPW
2. Whether the claim of the workman has been properly espoused by the Union? OPW
3. Whether any notice of demand was served upon management, if not, its effect? OPW
4. As per terms of reference.”

8. The learned Tribunal passed the impugned award dated 29th February, 2016 allowing the claim of the respondent workman, thereby, holding that the workman is entitled to the status of Garden Chaudhary and to the pay scale attached to the said post for the period he worked as Garden Chaudhary, i.e., w.e.f. 1st April, 1991. In pursuant thereto, a recovery certificate dated 2nd November, 2016 was issued by the Deputy Labour Commissioner East District, Labour Department, Government of NCT of Delhi against the present petitioner for making the payment of Rs. 8,16,472/-.
9. Being aggrieved by the aforementioned impugned award, the petitioner filed the instant petition seeking setting aside of the same.
PLEADINGS BEFORE THIS COURT
10. The petitioner has challenged the impugned award on the following grounds:
“…(ii) That the respondent workman has filed its Statement of claim before the Ld. Tribunal claiming that the workman was initially on the post of Mali in Central Zone and later on he was regularized /promoted on the same post, so he cannot be regularized/ promoted on the post of Garden Chaudhary and the claim filed by the respondent is misconceived and liable to be rejected on the sole ground. It is submitted that respondent is presently posted at Shahdra South Zone.

(iii) That it is submitted that the workman was not allotted the work of Chaudhary on 1.1.1991. It is submitted that the workman is performing the duties of Mali and he was never allotted the work of Garden Chaudhary by the competent authority. No copy of any office order has been placed by the workman to show that he was working on the said post of Garden Chaudhary.

(iv) That the workman has never performed the duties of Garden Chaudhary and no such type of office order was ever issued by the competent authority. Therefore, the question of pay scale of Garden Chaudhary does not arise. Therefore, the claim filed by the respondent-workman should have been rejected by Ld. Labour Court.

(v) That the recruitment rules for the post of Mali and Garden Chaudhry are totally deferent. Garden Chaudhary is not promotional post of Mali and moreover, qualifying the trade test is mandatory for the promotion to the post of Garden Chaudhary, the claim of the workman is totally baseless.

(vi) That the workman cannot be designated as Garden Chaudhary because of he never worked on the same post. There is a process for promotion to the post of Garden Chaudhary i.e there must be sanctioned post/vacant post of the garden Chaudhary and claimant should pass the trade test conducted by the department. It is submitted that the claimant has never passed the trade test as such, his present claim is misconceived and is contrary to the provisions of notified….
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(vii) That the petitioner has appeared before the Ld. Tribunal and contested the claim of the respondent by filing the detailed written statement in opposition to the statement of claim and contended that present dispute is not an industrial dispute, but is an individual dispute. The petitioner administration further contended that no demand notice has been served upon the petitioner management and as such, the present dispute is not an industrial dispute and therefore, reference is bad in law and is liable to be rejected.

(v) That the respondent/workman has failed to adduce any documentary evidence or oral evidence in support of his contention that Respondent/workman had been performing his duty of Garden Choudhary w.e.f. 01.01.1991. Respondent has made merely an equivocal contentions, therefore, entire contention of respondent is on the basis of the vague contention. However, Petitioner administration has denied that respondent workman has not discharged the duties of Garden Choudhary. Therefore, question does not arise for giving the pay scale of the Garden Chaudhary to the respondent workman. It is further submitted that merely inclusion of the name of the workman in the panel does not entitle him for the pay scale of the post of Garden Chaudhary.
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A. Because Ld. Industrial Tribunal has failed to appreciate the fact that the claim of the respondent is not maintainable before the Ld. Tribunal below because Respondent was seeking the status of the Garden Choudhary on the retrospective effect.

B. Because impugned judgment passed by the Ld. Tribunal in utter disregard with the admitted fact that respondent is not entitled for the promotion to the post of Garden Chaudhary w.e.f. 01.01.91 because the post of the Garden Chaudhary is not the promotional post and same is required to be filled up by way of conducting the trade test and only those who have qualified the prescribed test for the post is entitled to get promoted to the post of Garden Choudhary. Therefore, in the absence of qualifying in any trade test prescribed for the post, the workman cannot be entitled to get the pay scale of the said post w.e.f. 1991. Therefore, the impugned judgment of the Tribunal below is bad in law and is liable to be quashed by this Hon’ble Court.

C. Because Ld. Industrial Tribunal has failed to appreciate the fact that the workman was not allotted the work of Chaudhary on 1.1.1991. It is submitted that the workman is performing the duties of Mall and he was never allotted the work of Garden Chaudhary by the competent authority. No copy of any office order has been placed by the workman to show that he was working on the said post of Garden Chaudhary.
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E. Because Ld. Industrial Tribunal has failed to appreciate the fact that the recruitment rules for the post of Mali and Garden Chaudhary are totally deferent. Garden Chaudhary is not promotional post of Mali and moreover, qualifying the trade test is mandatory for the promotion to the post of Garden Chaudhary, the claim of the workman is totally baseless.

F. Because Ld. Industrial Tribunal has failed to appreciate the fact that workman cannot be designated as Garden Chaudhary because of he never worked on the same post. There is a process for promotion to the post of Garden Chaudhary i.e there must be sanctioned post/vacant post of the garden Chaudhary and claimant should pass the trade test conducted by the department. It is submitted that the claimant has never passed the trade test as such, his present claim is misconceived and is contrary to the provisions of law….”

11. The respondent workman has filed his counter affidavit rebutting the petitioner’s contentions on the following grounds:
“..2. That the writ petition filed by the petitioner is not maintainable as it is covered by several orders passed by the Hon’ble High Court of Delhi. The main case of the Department which is Sultan Singh’s case also stand dismissed by the Hon’ble Supreme Court. The workman has been only granted the pay scale of Garden Chaudhary w.e.f. 01.04.991 till date in the pay scale of Rs.950 – 1500 (revised from time to time) meant for Garden Chaudhary for which period he was directed to perform the work of Garden Chaudhary and for which after the award, the payment has already been made.
***
***
The copy of the order passed by Hon’ble High Court of Delhi in MOD Vs. Jai Pal Singh (WP(C) No. 5521/2011) is annexed herewith and marked as Annexure C-1.
The copy of the order passed by Hon’ble High Court of Delhi in MCD Vs. Mahipal (WP(C) No. 5550/2010) is annexed herewith and marked as Annexure C-2.
The copy of the order passed by Hon’ble High Court of Delhi in MCD Vs. Satinder Singh (WP(C) No. 5066/2010) is annexed herewith and marked as Annexure C-3.
The copy of the order passed by Hon’ble High Court of Delhi in MCD Vs. Kanwar Singh (WP(C) No. 4940/2010) is annexed herewith and marked as Annexure C-4.
The copy of the order passed by Hon’ble High Court of Delhi in MCD Vs. Sh. Sultan Singh & Ors. (WP(C) No. 7947/2010) is annexed herewith and marked as Annexure C-5.
The copy of the order passed by Hon’ble Supreme Court in MCD Vs. Sultan Singh &Ors. (SLP(C) No. 20069/2011) is annexed herewith and marked as Annexure C-6.
The copy of the order passed by Hon’ble High Court of Delhi in Sultan Singh &Ors. Vs. MCD (WP(C) No. 5453/2012) is annexed herewith and marked as Annexure C-7….”

12. Written submissions dated 25th May, 2024 filed by the petitioner and written submissions dated 16th October, 2022 filed by the respondent workman are on record.

SUBMISSIONS
(on behalf of the petitioner)
13. Learned counsel appearing on behalf of the petitioner submitted that the impugned award is bad in law and is liable to be set aside since the same has been passed without taking into consideration the entire facts and circumstances of the case.
14. It is submitted that the learned Tribunal failed to appreciate that the workman was not allotted the work of Garden Chaudhary on 1st April, 1991 and he has been merely performing the work of Mali. It is further submitted that no copy of any office order has been placed by the workman on record to show that he was working on the said post. Therefore, the aforesaid facts clearly aver that the workman has never performed the duties of a Garden Chaudhary.
15. It is submitted that the learned Tribunal erred in law by failing to appreciate that the recruitment rules for the post of Mali and Garden Chaudhary are totally different.
16. It is submitted that the post of Garden Chaudhary is not a promotional post of Mali and moreover, qualifying the trade test is mandatory for the promotion to the post of Garden Chaudhary, and thus, the claim of the workman is baseless and misconceived.
17. It is submitted that the respondent workman cannot be designated as Garden Chaudhary because he never worked on the same post. There is a process for promotion to the post of Garden Chaudhary, i.e., there must be sanctioned post/vacant post of Garden Chaudhary and the workman should pass the trade test conducted by the department. It is submitted that the workman has never passed the trade test, and hence his claim is misconceived and wrongly adjudicated by the learned Tribunal.
18. It is submitted that the respondent workman has failed to adduce any documentary or oral evidence in support of his contention that the respondent workman had been performing his duty of Garden Chaudhary w.e.f. 1st April, 1991.
19. It is submitted that the respondent has merely made equivocal contentions, therefore, the same are vague due to lack of substantial evidence. It is further submitted that mere inclusion of the name of the workman in the panel does not entitle him to the pay scale for the post of the Garden Chaudhary.
20. It is submitted that the impugned award is not sustainable in the eyes of law as the learned Tribunal failed to appreciate the fact that the respondent was promoted to the promotional post, i.e., Garden Chaudhary w.e.f. 29th July, 2005 upon qualifying the trade test as envisaged on the post.
21. It is further submitted that the finding that the respondent herein has worked for the post in question w.e.f. 1st April, 1991 is merely on the basis that no suggestion was put to the respondent in his cross examination that he had not worked as Garden Choudhary w.e.f. 1st April, 1991.
22. It is also submitted that the learned Tribunal has placed reliance upon Ex. WW1/1 which is a list of names of the workman as per which it has been stated that the respondent workman was appointed to work as Garden Chaudhary. It is submitted that the said list cannot be relied upon by the learned Tribunal as there is no other evidence to prove that the workman was working at the said post as claimed.
23. It is submitted that as per the judgment of the Hon’ble Supreme in State of Orissa v. Pyari Mohan Misra (Dr)1 even if the respondent workman was allowed to officiate on the promoted post, in addition to his substantive post, without selection by the Departmental Promotion Committee (hereinafter “DPC”), the same does not confer any right on the workman to claim regular scale of pay in the said officiating post.
24. It is further submitted that the onus to prove the above said fact is upon the respondent workman that he has worked on the said post w.e.f. 1st April, 1991, however, the respondent has failed to discharge its onus and failed to prove its contention by adducing either any documentary or oral evidence. Therefore, in the absence of any material on record, the learned Tribunal is not justified in holding that the respondent has worked on the post in question w.e.f. 1st April, 1991.
25. Therefore, in view of the foregoing submissions, it is prayed that the instant petition may be allowed and the reliefs be granted as prayed for.

(on behalf of the respondent workman)
26. Per Contra, the learned counsel appearing on behalf of the respondent workman vehemently opposed the instant petition submitting to the effect that the same is liable to be dismissed being devoid of any merits.
27. It is submitted that the learned Tribunal rightly adjudicated the workman’s claim by granting him the pay scale of Garden Chaudhary w.e.f. 1st April, 1991.
28. It is submitted that the workman had produced a list of the names of the workman marked as Ex. WW1/1 where his name appeared at serial no. 42, thereby, showing that the workman was earlier working as Mali, appointed on 1st April, 1989 and thereafter, he has been working as Officiating Garden Chaudhary w.e.f. 1st April, 1991. It is further submitted that the said list was issued by the petitioner department and the same has not been denied, thus, rightly considered by the learned Tribunal in favour of the workman.
29. It is submitted that the legal issue raised in the instant writ petition is covered by the judgment of the Division Bench of this Court passed in the case of Municipal Corpn. of Delhi v. Sultan Singh2. It is further submitted that in the said judgment, it was held by the Division Bench of this Court that the claim of the workmen therein has always been that they should be paid the difference in pay of a Mali/Chowkidar and the Garden Chaudhary as they were made to work on the post of Garden Chaudhary.
30. It is submitted that the aforesaid judgment of the Division Bench of this Court was challenged before the Hon’ble Supreme Court where the same was dismissed as withdrawn vide order dated 9th April, 2012 in case titled as Municipal Corp. of Delhi v. Sultan Singh & Ors.3.
31. It is submitted that the instant petition is nothing but a gross abuse of process of law and there is nothing on record to show any illegality in the findings of the impugned award or the reasoning behind the same.
32. It is submitted that this Court cannot delve into the facts of the matter as the same is the prerogative of the learned Tribunal which is empowered to adjudicate upon the industrial disputes under the Industrial Disputes Act, 1947.
33. It is submitted that under Article 226 of the Constitution of India, this Court does not have the jurisdiction to re-appreciate the evidence on record and issue a writ until there is any error apparent on the face of the record.
34. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be dismissed being devoid of any merits.

ANALYSIS AND FINDINGS
35. The matter was heard at length with arguments advanced by the learned counsel for the respective parties. This Court has perused the entire material on record and has also duly considered the factual scenario of the matter, judicial pronouncements relied upon by the parties and pleadings presented by the learned counsel for the parties.
36. It is the case of the petitioner department that the impugned award is bad in law since the learned Tribunal erred in holding the respondent workman entitled to the status of Garden Chaudhary w.e.f. 1st April, 1991 and therefore, entitled to the pay scale of the said post. It has been contended on behalf of the petitioner department that the respondent workman was appointed on the post of Mali w.e.f. 1st April, 1989 and since then he has been working as a Mali in the petitioner department. It has been submitted that the respondent workman cannot claim the status of Garden Chaudhary w.e.f. 1st April, 1991 since he did not possess the necessary qualification at the relevant time. The petitioner further contends that other than not being qualified for promotion to the post of Garden Chaudhary, the respondent workman did not even pass the trade test for appointment to the said post. Moreover, the respondent workman has failed to adduce any evidence to show that he was working as Garden Chaudhary with the petitioner department. Therefore, the impugned award is liable to be set aside being against the settled position of law.
37. In rival contentions, the respondent workman has vehemently opposed the instant petition contending to the effect that there is no illegality in the impugned award and the present writ petition is without any merits. It has been submitted that the present case is covered by various decisions of this Court as well as the Hon’ble Supreme Court qua the similar facts and circumstances and the petitioner is merely prolonging the issue unnecessarily. It has been contended that the respondent workman has only been granted the pay scale of Garden Chaudhary w.e.f. 1st April, 1991 till date, meant for Garden Chaudhary for which period he was directed to perform the work of Garden Chaudhary. The respondent contends that as per the judgment of the Division Bench of this Court in Sultan Singh (Supra), appeal against which was also dismissed by the Hon’ble Supreme Court, the impugned award has been rightly passed in favour of the workman. Learned counsel appearing on behalf of the respondent workman also placed reliance upon the judgment dated 20th March, 2012 of the Coordinate Bench of this Court in the matter of M.C.D. v. Jai Pal Singh4 wherein a similar mater was decided in favour of the workman therein and the petitioner department therein was directed to pay the difference in the pay of Mali and Garden Chaudhary from 1st April, 1991 till the time he had performed the duties of Garden Chaudhary. In view of the foregoing submissions, it is prayed that the instant petition may be dismissed.
38. At this stage, this Court deems it appropriate to peruse and discuss the finding of the learned Industrial Tribunal. The relevant paragraphs of the impugned award are as under:
“…..2. Statement of claim has been filed by the Workman, wherein it is stated that workman was employed as Mali w.e.f. 01.04.1989 that he was allotted the work of Chaudhary w.e.f 01.01.1991 by the order of Competent Officer of the Horticulture Department. It is averred that workman has got the payment in lower pay scale of Mali i.e. Rs.750-9401- revised from time to time but he is denied the pay scale of Rs.950-1500/- for his performing the duty of Chaudhary w.e.f 01.01.1991. The Mali comes under the category of unskilled worker while Chaudhary comes under the category of skilled worker. It is further averred that Hon’ble High Court of Delhi in CW no.5514/2001 has disapproved the non- I payment vide order dated 2.5.2003 for the post of Chaudhary and MCD vide order no. ADC(Hort)/A.O.(Hort)/DA-VII/055/457 dated 4.3.2005 has implemented the said order of the Hon’ble High Court of Delhi. It is further averred that the Commission, MCD vide order no.LWD/HQ/05/5 16 dated 29.07.2005 has accorded permission to MCD General Mazdoor Union for negotiation and correspondence in respect of the workman working in Horticulture Department of MCD and that the Managing Committee of MCD General Mazdoor Union in the meeting held on 05.06.2011 sponsored the cause of Sh. Siroman Singh to raise the dispute for regularization as Chaudhary.

It has been prayed that the workman may kindly be granted status of Garden Chaudhary in the pay scale of Rs.950-1500/- w.e.f 01.01.1991.

3. The Management has filed the Written Statement to the claim of the Workman thereby taking preliminary objections that the present dispute is not an industrial dispute as it is not espoused by the Union and the workman has also not authorized the Union to file the present claim. Further, plea of the Management is that no demand notice has been served upon the Management. It is averred that the workman was initially on the post of Mali and later on he was regularized/promoted on the same post, so he cannot be regularized on the post of Garden Chaudhary as he has never performed his duties as Garden Chaudhary. It is further averred that the rules for the post of Mali and Garden Chaudhary are totally different. Chaudhary is not the promotional post and test has to be qualified to become Chaudhary. It is further averred that the present workman never worked on the post of Garden Chaudhary and to become Chaudhary there must be sanctioned post. The claimant has never passed the trade test and there is no office order issued for assigning the duties of Garden Chaudhary. The Management has denied the contents of the statement of claim in parawise reply on merits and averred that the claim of the claimant may kindly be dismissed.

4. On the pleadings of the parties, following issues were framed on 18.07.2013:-
ISSUES
1. Whether present dispute is an Industrial Dispute as defined in Section 2(k) of Industrial Dispute Act? OPW
2. Whether the present claim of the workmen has been properly espoused by the Union? OPW
3. Whether any notice of demand was served upon Management, if not, its effect? OPW
4. As per terms of reference.

5. In Workman Evidence, the workman Siroman Singh examined himself as WW1. In his affidavit, WW1 has reiterated more or less the contents of statement of claim. He has stated that he was allotted the work of Acting Chaudhary w.e.f 01.01.91 and his name is appearing at Sr.no.42 on Ex.WW1/3. The MOD has granted the pay scale to Sh Jai Chand vide order Ex.WW1/2. He also exhibited the copy of order of case titled Sultan Singh & ors. As ex.WW1/3. In cross examination, he has stated that it is correct that he was holding the post of Mali w.e.f 01.01.91 Volunteered he was allotted the work of Chaudhary w.e.f 01.01.91. He was regularly promoted to the post of Garden Chaudhary w.e.f 04.03.2014. He qualified the trade test.

6. WW2 Sh BK Prasad is the President of MCD General Mazdoor Union and he proved the registration copy of the Union as EX.WW2/1. The order of MCD for negotiation is Ex.WW2/2. The Managing Committee of MCD General Mazdoor Union in its meeting held on 11.04.2011 sponsored the cause of workman to raise the dispute and copy of said sponsorship is Ex.WW2/3. List of office bearers is Ex.WW2/4. In cross examination, he denied the suggestion that the union is not a registered union. He further denied the suggestion that he is not the President of the Union or that no meeting was held on 11.04.2011.

7. The Management in its Evidence has examined one witness MWl Mewa Ram who has reiterated that contents of written statement that the workman has never performed the duty of Garden Chaudhary and that for the post of Garden Chaudhary there is process i.e. there must be sanctioned post and the test has to be qualified. He proved the copy of service book of workman as Ex.WW1/1 (colly). In cross examination, he has deposed that it is admitted that workman has been promoted since 04.03.20 14. After seeing EX.WW1/1, he replied that office file number is not mentioned and that the Dy. Director (Hort.) has no power to direct the Mali/Gardner to look after the work of Chaudhary. He admitted that Ex.WW1/1 has already been got verified by the Astt. Director (Horticulture). He admitted that nowadays Sh. Narpat Singh is posted in Shahdara, North Zone.

He admitted that Ex.WW1/3 was issued by Director (Horticulture). He admitted that after joining by Siroman in their department, he has been looking after the work of Chaudhary. He admitted that if the rules allow to give the money for the period working as Chaudhary by the Workman, Siroman Singh, till he is appearing in the examination conducted by the Department for promotion as Chaudhary, then he is eligible to get the said amount from the department.

8. I have heard the arguments from Sh. BK Prasad, Ld. AR for the Workman and Sh. Naveen Singia, Ld. AR for Management. I have carefully perused the evidence on record. My issues wise findings are as under
ISSUE NO.1
1. Whether present dispute is an Industrial Dispute as defined in Section 2(k) of Industrial Dispute Act? OPW
9. The onus to prove this issue is on the Workman. Section 2(k) of ID Act provides as below:”industrial dispute” means any dispute or difference between employers and employee or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, or any person”
In Municipal Employees Union Vs. The Secretary (Labour) & Anrs. 1999 LLR 1020, it has been held that
“It is clear that even a dispute between an employer and his workmen which is connected with non-employment of any person can be an industrial dispute. The beneficiary of the claim need not be a workman of the employer at the time of raising the dispute. A dispute can be raised by the workmen of the employer even in respect of the non-employment of any person, who is not hi workman at the material time”.’
I have also perused Schedule II & III of I.D Act which contemplates: –
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10. Workman has examined Sh BK Prasad, President of MCD General Majdoor Union as WW2 in this present case. In his affidavit, filed by way of an evidence, he has produced the copy of espousal sponsorship dated 11.04.2011 as Ex.WW2/3, copy of Union registration certificate as Ex.WW2/1. No question has been put to any of the workman witnesses by the Ld. AR for the Management that the present dispute is not an industrial dispute as defined u/s 2(k) of ID Act. The present workman is employed in East Delhi Municipal Corporation. He has raised the plea that the work of Garden Chaudhary was being taken from him while he was being paid as per the scale of Mali. Thus, it is held that the present dispute is an industrial dispute as defined in section 2(k) of I. D. Act. Issue no.1is decided accordingly in favour of the workman.

ISSUE NO.2
Whether the present claim of the workmen has been properly espoused by the Union? OPW
11. The onus to prove this issue is on the workman. The workman has examined WW2 Sh. B.K. Prasad, President of the Union who has proved the espousal letter issued by Sh. Bhoop Singh, General Secretary of MCD General Mazdoor Union(Regd). The copy of the said letter dated 11.04.2011 is available on file as EX.WW2/3. In reference order, the name of the Union specifically mentioned. In cross examination, no question has been asked by the Ld.AR from WW1 that his case has not been properly espoused. No question has also been asked with regard to meeting of the union. Only suggestion has been put to WW2 with regard to espousal which will not affect the case of the workman. In view of this, I am of the view that the cause of the workmen has been duly espoused. Issue no.1 is decided accordingly in favour of the workman.

ISSUE NO.3
Whether any notice of demand was served upon Management, if not, its effect? OPW

12. The onus to prove this issue is on the Workman. However, perusal of the record shows that workman has failed to prove that he sent any demand notice to the management.

13. In Shambu Nath Goyal Vs. Bank of Baroda, Jullundur, (1978), 2 SCR 793, Hon’ble Supreme Court after referring to section 2(k) of the Industrial Dispute, 1947, which defines “industrial dispute”, held as below:
“A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non- employment or terms of employment or with the condition of labour of any person, there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into- existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because section forbids going on strike without giving a strike notice”.

14. Though, no demand notice has been served upon the management, yet in view of above judgment, it will have no material affect on the award as no such notice was required to be given. Issue no.3 is decided accordingly.

ISSUE NO.4
4. As per terms of reference.
The terms of reference is – “Whether Sh Siroman Singh S/o Sh. Inderpal Singh is entitled to the status of Chaudhary in the pay scale of Rs.950-1500 with effect from 01.01.1991 revised from time to time along with all consequential benefits and if so, to what relief is he entitled and what directions are necessary in this respect?”

15. The Workman has deposed in his affidavit filed in his evidence that he was working as acting Chaudhary w.e.f 01.01.91 and his name appears at sr.no.42 in Annexure W which is Ex.WW1/1. I have perused the said exhibited document. It clearly shows that the employees from sr.no.1 to 43 were working as Officiating Chudharies with the Management. The list clearly show that the persons were earlier working as Mali who have been working as Chaudhary w.e.f the date mentioned against their names. The perusal of Ex.WW1/1 shows that the name of Workman appears at sr.no.42 i.e. Siroman sb Inderpal, earlier working as Mali, appointed on 01.04.1989, working as Officiating Chaudhary w.e.f. 01.04.1991. This list has been signed by Dy. Director (Horticulture). This document has been issued by Management. It has not been denied by the Management that this document does not belong to then’ or that it is a false or procured document. In cross examination, WW1 Workman has deposed that he has been regularly promoted to the post of Garden Chaudhary w.e.f 04.03.2014. He qualified the trade test for the post of Garden Choudhary. The document Ex.WW1/1 clearly indicate that the workman started working as Chaudhary w.e.f. 01.04.199 1 though the passed the required test later and promoted to the post of Chaudhary.

16. The Management has also led the evidence to counter the claim of the workman. But the plea of the management that the workman never performed the work of chaudhary is unbelievable since the the document EX.WW1/1 issued by management clearly indicate that the workman used to perform the duty of Chaudhary w.e.f. 01.04.1991. I have perused the service book of the workman Ex.MW1/1 (colly.). The said service book clearly show that the workman has been getting the pay scale applicable to Mali while he has been working as Chaudhary w.e.f .01.04.1991.

17. Workman has also deposed that the Management has granted the pay scale to Sh. Jal Chand (co-worker) and order of MCD In this respect Is Ex.WW1/2.1 have perused the said order. It clearly Indicate that the order of Hon’ble High Court dated 02.05.2003 passed In CWP No.6514/2001 In the matter of Jal Chand Vs. MCD & Ors. And order dated 24.09.2004 passed In CWP no. 4799/2000 In the matter of MCD Vs. Jal Chand are implemented. It is therefore, clear that the Management has already implemented the scale to its worker Jai Chand.

18. In Selvaraj Vs. Ltd. Governor of Island, Port Blair (1998) 4 SCC 291, It is held that The employee was not regularly promoted to the post of Secretary (scouts) but he was regularly asked to look after the duties of Secretary (Scouts). Applying the principle of quantum merit it was held by the Supreme Court that the authorities should have paid to the employee the emoluments available in the higher pay scale during the time he actually worked on the said post of secretary (Scouts) though in an officiating capacity and not as a regular promote.

19. In M.C.D Vs. Sultan Singh & Ors. WP (C) NO.7974/2010, it is observed that ‘considering the entire facts and circumstances it is apparent that the claim of the respondents have always been that they should be paid the difference in pay of Mali/Chowkidar and the Garden Chaudhary as they were made to work on the post of Garden Chaudhary whereas the petitioner had first denied that they worked as Garden Chaudharies, then took the plea that the Assiatant Director (Horticulture) was not competent to ask the respondents to work as Garden Chaudharies and that the respondents cannot be appointed to the post of Garden Chaudharies in accordance with the recruitment rules. There is no doubt that respondents are not claiming appointment to the post of Garden Chaudharies on account of having worked on adhoc basis on the post of Garden Chaudhary contrary to rules or that some of them not having the requisite qualifications are entitled for relaxation. In the entirety of facts & circumstances therefore, the learned counsel for the petitioner has failed to make out any such grounds which will impel this court to exercise its jurisdiction under Article 226 of the Constitution to set aside the order of the Tribunal dated 291/1 Jan 2010 and 7th Oct. 2010 as no illegality or un-sustainability or perversity in the orders of the Tribunal has been made out.

20. In view of my above discussions and Judgment quoted above and considering Ex.WW1/1, Workman is entitled to the Status of Chaudhary and he is also entitled to pay scaled attached to this post for the period he worked as Chaudhary. The Management has been failed to produce any record that the workman was appointed as officiating Chaudhary for some time and that thereafter he stopped working as Chaudhary. On the other hand, it has been admitted that the workman has been promoted as Chaudhary w.e.f. 04.03.2014 after passing required trade test.
21. In view of the entire facts and circumstances of the case, it is held that the workman is entitled for the pay scale of Rs.950- 1500/- (revised from time to time) meant for Garden Chaudhary w.e.f. 01.04.1991 till date. Issue no.2 of the reference is decided accordingly in favour of the Workman….”

39. Upon perusal of the above extracted portion of the impugned award, it is observed that the case before the learned Tribunal revolves around a dispute raised by Sh. Siroman Singh, a workman, regarding his entitlement to the pay scale and status of a Garden Chaudhary. The wor