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Workmen Of Municipal Corporation Of Delhi And Another v. Municipal Corporation Of Delhi And Another
Structured Summary of the Provided Opinion
Factual and Procedural Background
Certain disputes arose between various workmen of the Municipal Corporation of Delhi (MCD) and the Corporation's management in 1967–68. This petition concerns only one such dispute involving the petitioner, Zia-ud-din. After conciliation failed, the dispute was referred to the Additional Industrial Tribunal, Delhi by the Lieutenant Governor by order dated 20 September 1968.
The formal term of reference before the Tribunal was: “Whether the non-employment since 1 October 1967, of Zia-ud-din, pipe fitter, slum department, was wrongful and/or unjustified and if so to what relief is he entitled?”
The petitioner claimed that he had been taken into employment in the Slum and Housing Department as a pipe fitter on a regular vacancy but on 31 August 1962 was placed on the muster-roll (daily-rated). He alleged the Corporation did not give any notice under S.9A of the Industrial Disputes Act, 1947, and that he was forced into unemployment effective 1 October 1967 without reason. He alleged denial of weekly offs and reduction to Rs.6 per day, characterizing the action as wrongful termination and an unfair labour practice.
The management initially sought further particulars and then filed a written statement pleading that the petitioner had been appointed temporarily and later engaged on daily wages because he was junior to senior muster-roll workers; it asserted the action was bona fide and in accordance with rules. The petitioner led evidence (he testified as WW5) about his employment history, days worked each year between 1962–1967, removal in 1967, and subsequent occasional manual labour. The Tribunal accepted the petitioner's account of days worked and noted that the management engaged another person in his place and produced no rebuttal evidence or seniority list.
Despite those findings, the Tribunal rejected the petitioner's claim on the basis that the J.J. Scheme in which he worked had been transferred to the Delhi Development Authority (D.D.A.), and therefore the Municipal Corporation could have no say in the employment matters of the transferred scheme.
Legal Issues Presented
- Whether the non-employment of Zia-ud-din from 1 October 1967 was wrongful and/or unjustified and, if so, what relief he is entitled to (as framed in the terms of reference).
- Whether the non-employment/termination constituted "retrenchment" within the meaning of S.25F (read with S.25B) of the Industrial Disputes Act, 1947, and if the statutory pre-conditions to valid retrenchment were complied with.
- Whether the transfer of the J.J. Scheme to the D.D.A. (and any subsequent transfer) relieved the Municipal Corporation of liability for the petitioner's non-employment that occurred while the department was admittedly still with the Municipal Corporation (i.e., whether the transfer to D.D.A. barred relief against MCD).
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted he had been appointed to a regular vacancy as a pipe fitter but was placed on muster-roll from 31 August 1962 and later forced into unemployment from 1 October 1967 without any notice or reason.
- He alleged non-compliance with statutory safeguards (notably no notice under S.9A was given) and asserted wrongful termination/unfair labour practice.
- The petitioner provided evidence of substantial days worked each year (e.g., 358 days in 1962, 341 in 1963, etc.), and counsel argued S.25F protections applied because he had the requisite continuous service or, under S.25B, had worked more than 240 days in the relevant 12-month periods.
- The petitioner filed an affidavit in 1971 stating that the department had been retransferred to the Municipal Corporation; he also testified that after removal he only occasionally did manual labour and was not gainfully employed.
Respondent (Municipal Corporation of Delhi) Arguments
- In the written statement the management contended the petitioner had been appointed only temporarily and was thereafter engaged on daily wages basis because he was junior to other muster-roll workers.
- The management argued its action was bona fide and in accordance with rules and regulations.
- Before the Tribunal the management's position (accepted by the Tribunal) was that because the J.J. Scheme had been transferred to the D.D.A., the Municipal Corporation had nothing to do with the employees of that scheme and hence the claim against Municipal Corporation was misconceived.
- Before this Court the management's argument was summarized as saying the petitioner was a daily-rate workman in a department that stood transferred to the D.D.A., and therefore he could not be assigned work by the Municipal Corporation thereafter.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Robert D'Souza. (L.) v. Executive Engineer, Southern Railway, [1982 — I L.L.N 257] | That a daily-rated worker who has rendered continuous uninterrupted service for one year or more falls within the protection of S.25F; termination in such circumstances is retrenchment and invalid if statutory pre-conditions to retrenchment are not complied with. | The court relied on this authority to hold that even a daily-rated workman who satisfied the service threshold is protected by S.25F and that the petitioner's non-employment from 1 October 1967 amounted to termination/retrenchment invalid for failure to comply with pre-conditions to retrenchment. |
Court's Reasoning and Analysis
The court proceeded in a stepwise manner restricted to the facts and law expressly stated in the opinion:
- Temporal focus: The court emphasised that the critical date is 1 October 1967 — the date from which the petitioner was not assigned further work and thus when he was effectively relieved or his services terminated. On that date the department was admittedly still under the Municipal Corporation's control; the later transfer to D.D.A. occurred after this date.
- On facts and evidence: The Tribunal had accepted the petitioner's uncontradicted testimony as to days worked each year (well in excess of 240 days per year), and the management had led no rebuttal evidence or produced a seniority list despite an earlier resolution obliging it to do so. The petitioner also filed an affidavit (in 1971) stating retransfer of the department to the Municipal Corporation; there was no evidence to the contrary.
- Statutory framework: The court identified S.25F of the Industrial Disputes Act as the provision that affords relief to a retrenched workman and noted S.25B's definition of what constitutes "continuous service" (including the 240-days rule for deeming continuity in the preceding 12 months).
- Application of law to facts: Because the petitioner had indisputably worked much more than 240 days in each relevant year and met the continuous-service threshold, S.25F protection applied. The court rejected the Municipal Corporation's contention that the subsequent transfer to D.D.A. absolved it, observing that the transfer occurred after the date of non-employment and that the corporation had not produced evidence to show any compliance with statutory pre-conditions for retrenchment.
- Precedent support: The court relied on the Supreme Court decision in Robert D'Souza to reinforce the principle that a daily-rated workman who satisfies the continuous-service test is protected and that termination without compliance with retrenchment pre-conditions is illegal.
- Relief analysis (back-wages): The court considered whether to remit the question of back-wages to the Tribunal but noted the exceptional delay (the petition had been pending for over 13 years) and the absence of any evidence from the management that the petitioner had been gainfully employed during the interregnum. Given those circumstances the court concluded that further delay would not be in the interests of justice and so awarded a lump sum in lieu of detailed back-wage computation.
Holding and Implications
Holding: The court made the rule absolute, quashed the Tribunal's award dated 4 October 1972, directed that the petitioner be reinstated with immediate effect, and awarded Rs. 20,000 in lump sum towards back-wages. The petitioner was also awarded costs and a counsel fee of Rs. 300.
Implications:
- Direct effect on the parties: The Municipal Corporation must reinstate Zia-ud-din immediately, pay Rs. 20,000 as lump-sum back-wages, and pay the petitioner's costs including Rs. 300 as counsel fee.
- On legal principle: The decision applies the established principle that a daily-rated worker who meets the statutory continuity threshold is protected by S.25F and that termination without compliance with statutory pre-conditions amounts to invalid retrenchment. The opinion expressly relies on an earlier Supreme Court authority for that proposition.
- Broader precedent-setting: The opinion does not purport to set new law; it applies existing statutory tests and Supreme Court precedent to the facts of the case. No novel general rule was announced beyond the application of S.25F/S.25B and the cited precedent to the particular facts.
This case is a glaring example of laws delay. Certain disputes arose between various workmen of Municipal Corporation of Delhi and the management of the said Corporation in the year 1967/68. In this petition, I am only concerned with the dispute regarding the petitioner, namely, Zia-ud-din. The conciliation proceedings having failed the dispute was referred to the Additional. Industrial Tribunal, Delhi by the Lieutenant Governor, vide order, dated 20 September 1968. The terms of reference were:
“Whether the non-employment since 1 October 1967, of Zia-ud-din, pips fitter, slum department, was wrongful and/or unjustified and if so to what relief is he entitled?”
2. The petitioner-workmen filed his statement of claim before the Tribunal. It was stated:
“The workman Sh. Zia-ud-din was taken into employment by the Municipal Corporation of Delhi in its Slum and Housing Department as a pipe fitter on a regular vacancy in the pay scale of Rs. 110-3-131-4-139 with usual allowances admissible under the rules. But to his utter surprise on 31 August 1962, he was placed on the list of muster-roll daily-rated workers. The Municipal Corporation did not give any notice under S. 9A of the Industrial Disputes Act, 1947, for bringing this fact in his service conditions. The workman aforesaid, on one side, represented his case to the higher authorities and on the other side he continued performing his duties wherever he was put to work. The management of the Municipal Corporation of Delhi, forced unemployment on the aforesaid workman with effect from 1 October 1967 without assigning any reason thereof in clear violation of the mandatory provisions of law and the rules made thereunder. The workman aforesaid has been paid wages for the period form 1 September 1962 to 1 October 1967 at the rate of Rs. 6 per day and he was not paid for weekly off days although he was entitled to full facilities, privileges, allowances and the pay-scale he was originally granted. The action of the Municipal Corporation in throwing him out of the job is bad, improper, unjust and mala fide amounting to wronful termination of service and unfair labour practice.”
3. The management of the Municipal Corporation instead of filing the written statement, asked for certain further particulars, particularly regarding the date of his first appointment, etc. The said particulars were furnished by the petitioner. Thereafter the management filed the written statement and it was pleaded:
“Not admitted as stated Sh. Zia-ud-din, pipe fitter, was appointed for some time temporarily in slum department but subsequently he was engaged on daily wages basis on muster-roll as he was found junior to some other senior muster-roll workers.
In view of the above circumstances, the action of the Municipal Corporation of Delhi is bona fide and according to the rules and regulations.”
4. The petitioner led evidence in support of his case and he examined himself as WW5. He deposed that he joined the Municipal Corporation in the year 1961 and was removed in 1967 when he was getting Rs. 6 per day. He further stated that in the year 1962 he was working as a permanent employee for five months but thereafter was put on the muster-roll. He stated that in the year 1962 he worked for 358 days, in 1963 for 341 days, in 1964 for 343 days, in 1965 for 359 days, in 1966 for 304 days, in 1967 for 292 days. He further stated that the J.J Scheme in which he was working was transferred to D.D.A in the year 1968. Since his removal from service he has been doing some manual labour and is not employed anywhere. He further stated that he was also entitled to weekly off after working for six days which was not allowed to him. No evidence, in rebuttal, was led by the management. It appears that during the course of arguments, before the Tribunal, it was stated that the department in which the petitioner was working stood transferred to D.D.A in 1968 and as such no relief could be granted to the petitioner. The Tribunal accepted the statement of the petitioner regarding the number of days for which he worked in each of the years till 1967. The Tribunal also noticed that after the services of the petitioner were terminated, the management had engaged another person in his place. It was further found that the management had failed to examine any evidence in rebuttal and the management had not prepared any seniority list which it was under obligation to do in view of its own resolution, dated 5 January 1967. However, surprisingly the claim of the petitioner was negatived only with the following observations:
“Management's contention is that since the J.J Scheme has been transferred to D.D.A the Municipal Corporation has nothing to do with the employees of that scheme. The workman Zia-ud-din has himself admitted in cross-examination that all the employees of J.J Scheme have been transferred to the D.D.A Since the D.D.A is an independent body, the Municipal Corporation can have no say in the matter of employment of that body. I find myself in agreement with the above contention and hold that the claim of the workmen against the Municipal Corporation of Delhi is misconceived.”
5. Aforesaid finding was recorded inspite of the fact that admittedly the department was transferred to D.D.A much after 1 October 1967, the date from which the petitioner was not given the work. Secondly the petitioner had filed an affidavit, before the Industrial Tribunal to the effect that the department had been retransferred to the Municipal Corporation and that affidavit was filed in 1971. There was no evidence to the contrary and in any case even according to the Municipal Corporation the employees of that department were transferred to D.D.A and none of them was relieved merely because the department was being transferred.
6. In fact in this petition, I am concerned with the date from which the petitioner was not assigned any further work which means that he was relieved or his srevices were terminated and on that date the department was admittedly with the Municipal Corporation. The contention of the learned counsel for the petitioner, was that the petitioner could not be retrenched as the conditions precedent for retrenchment were not fulfilled and thus the order was in contravention of S. 25(F) of the Industrial Disputes Act, herein after called the Act. By now it is well settled that S. 25F of the Act is plainly inteded to give relief to retrenched workman. The qualification for relief under S. 25F is that the person should be the workman employed in an industry and has been in continuous service for not less than one year under his employer. What is continuous service has been defined and explained in S. 25B of the Act. The workman who is not in continuous service for a period of one year shall be deemed to be in continuous service for a period of one year if the workman during the period of 12 months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days. In the present case, the petitioner is admittedly a workman and the Municipal Corporation is admittedly an industry. There is no dispute that the petitioner did put in much more than 240 days in each year continuously for six years. In fact the allegations of the petitioner before the Industrial Tribunal or before this Court have not been denied. This petition has remained pending for over 13 years and in spite of that no counter-affidavit has been fifed by the Municipal Corporation, Delhi. The only contention of the learned counsel for the respondent before me was that the petitioner was a daily rate workman in a department which stood transferred to D.D.A and as such he could not be assigned any work by the management. This contention has no basis. It has reportedly been held by their Lordships of the Supreme Court that a daily-rated workman is as good a workman as any other provided he has put in the requisite number of days during the relevant period. In Robert D'Souza. (L.) v. Executive Engineer, Southern Railway, [1982 — I L.L.N 257] it was held in Para. 26, at page 271:
“…Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of S. 25F of the Act and his service is terminated for any reason whatsoever arid his case does not fall in any of the excepted categories notwithstanding the fact that rule 2505 (Railway Establishment Manual) would be attracted, it would have to be read subject to the provisions of the Act. Accordingly, the termination of service in this case would constitute retrenchment and for not complying with pre-conditions to valid retrenchment, the order of termination would be illegal and invalid.”
7. In view of the fact stated above and the law laid down by their Lordships of the Supreme Court, it has to be held that the non-employment of the petitioner from 1 October 1967 amounts to his termination and the said termination is invalid for non-compliance with the pre-conditions to valid retrenchment. In fact the management has not even alleged that there was any compliance with the pre-conditions to valid retrenchment.
8. The question which has to be considered is regarding the relief to be given to the petitioner. Obviously the petitioner is entitled to reinstatement but the difficulty is regarding the back-wages. The management has led no evidence either before the Tribunal or before this Court to the effect that the petitioner was in any way gainfully employed at any point of time. The petitioner in his statement before the Tribunal had stated that he was passing his days by doing manual labour now and then. There being no rebuttal it has to be held that the petitioner has not been gainfully employed during this period. The petitioner was only a daily rated workman and was getting Rs. 6 per day. It cannot be known as to how many days he would have worked if he had remained in the same capacity with the Municipal Corporation for all these years. Ordinarily, I would have sent this case back to the Industrial Tribunal for determining the question of back-wages but considering the fact that the petitioner has been out of employment since 1967, I feel that it is not in the interest of justice that this matter should be delayed for any further period. In the circumstances, I am of the considered opinion that the ends of justice would be met if the petitioner is awarded a sum of Rs. 20,000 in lump sum towards back-wages and is reinstated with immediate effect.
9. For the reasons recorded above, I make the rule absolute and while quashing the award, dated 4 October 1972, direct that the petitioner be reinstated with immediate effect and be paid Rs. 20,000 in lump sum towards back-wages. The petitioner will also be entitled to his costs in this petition. Counsel's fee Rs. 300.
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