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PETITIONER: BHAGWATI PRASAD AND ORS.

       Vs.

RESPONDENT: DELHI STATE MINERAL DEVELOPMENT CORPORATION

DATE OF JUDGMENT15/12/1989

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MISRA RANGNATH SAWANT, P.B.

CITATION:  1990 AIR  371            1989 SCR  Supl. (2) 513  1990 SCC  (1) 361        JT 1989 (4)   541  1989 SCALE  (2)1337

ACT:     Constitution  of India, 1950: Articles 39(d), 14  &  16: Daily 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.     Civil  Services: Daily rated workers discharging  duties effectively over a long period--Suitability of for regulari- sation  and  confirmation-Requirement  of  initial   minimum qualifications--Whether could be insisted upon.

HEADNOTE:     The 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.     The Industrial Tribunal, which was directed by the Court to examine the matter, found that all the  petitioners/work- men 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  employ- ees.  It further held that non-regularisation due to  uncer- tainty  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 discrim- inatory, arbitrary and an abuse of power by the management.     The respondent assailed the findings on merits  pointing out  various contentions raised in its pleading,  objections and  the documents filed before the Tribunal. It  also  con- tended  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.

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Allowing 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-Corpora- tion,  and are entitled to the scale of pay  and  allowances revised from time to time for the said posts. [518D]     2. 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 was not, therefore, open  to the respondent in the instant case to say that the  proceed- ings recorded by the Tribunal were incorrect. [517C-D]     3.  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 undoubt- edly 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  respec- tive  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 require- ment  of three years’ service so calculated, 40 of the  sen- ior-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, [517G:518B-D] 4.  Those  of the petitioners who were ousted  from  service pending 515 the writ petitions to be reinstated immediately. [518D-E]

JUDGMENT:     CIVIL ORIGINAL JURISDICTION: Writ Petition Nos. 100  and 1078 of 1988. (Under Article 32 of Constitution of India).     R.D.  Upadhyaya,  H.N. Salve and Rajiv K. Garg  for  the petitioners. R.K. Jain, Ashok Grover and S.C. Paul for the Respondent. The 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.     2. The 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

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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  serv- ice.  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  provi- sions of Art. 39.     3. The 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.     4. We 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  designa- tions  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  semi- skilled  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  33- C(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 onethird  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. It  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

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mining lease after its expiry was believed by the subsequent advertisement calling applications for filling up the vacan- cies.  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  requi- site 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.     5.  Shri R.K. Jain, learned counsel for the  respondent, has vehemently assailed the tenability of all the  recommen- dations.  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 conten- tions  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  counte- nanced.  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.     6.  The  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  indis- putable  facts are that the petitioners were  appointed  be- tween 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. Practical  experience would always aid the person to  effec- tively 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,

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three years’ experience, ignoring artificial break in  serv- ice  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 exclud- ed  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  regula- rised in a phased manner, before April 1, 1991 and  promoted to  the next higher post according  to the standing  orders. All  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  remu- neration of the Industrial Tribunal. The writ petitions  are accordingly allowed, but without costs. P.S.S.                                             Petitions allowed. 519