Full Judgment
S.K. Mahajan, J.
1. Rule.
2. Respondent No. 1 was served as far back as on 5th March, 2001 and despite repeated opportunities, counter affidavit has not been filed by him. Today it is submitted by learned counsel for respondent No. 1 that the said respondent has not contacted the counsel and they have, thereforee, no instructions in the matter. Counsel wants notice to be issued to the workman, however, since the workman has already been served at the address given by him before the industrial Tribunal, I do not deem it necessary to issue any fresh notice to the workman.
3. The only dispute between the parties in this case is, about the date of regularisation of the workman. The workman was working as a daily wager since about 1980. On 1st April, 1990 his services were regularised. Since the workman had raised a dispute about the date of his regularisation, the matter was referred for adjudication to the Industrial Tribunal. By the Impugned award, the Industrial Tribunal held him entitled to regularisation of his services w.e.f. 19.5.1980 when he was first given work as a daily wager and directed the Management to regularise him with effect from the aforesaid date in proper pay scale and allowances with the consequential benefits. The award of the Industrial Tribunal has been challenged by the petitioner by way of the present writ petition.
4. Learned counsel for the petitioner has submitted that the Municipal Corporation of Delhi had already framed a scheme of regularisation in terms of the judgment of the Supreme Court and the daily wagers were being regularised in accordance with the seniority under the scheme framed by the Corporation. Learned counsel has relied upon the judgment of this Court in Municipal Corporation of Delhi v. Gauri Shankar and Ors., : 81(1999)DLT535 to contend that the workman could not be regularised from the date of his initial engagement as a daily wager.
5. It is no doubt true that when regular work is available the Management should not resort to appointment on casual basis and thereafter continue to employ them on casual basis for a long period of time and not fill up the post on regular basis. However, after a person is appointed on daily basis and continues as such for a long period, it does not follow there from that there was a substantive post available or the said person had been working against a permanent post.
6. In Municipal Corporation of Delhi v. Gauri Shankar and Ors. (Supra) this Court was concerned with almost a similar matter and it was held that as far as permanent absorption of the daily wager/casual employee was concerned, the same could be granted only if there were sanctioned posts available for being filled up and in fact in most of the decisions of the Supreme. Court on regularisation, the Supreme Court had directed the employer to frame a policy for regularisation of the daily wage employees.
7. The workman in the present case had himself admitted before the Labour Court that regularisation was being done in acc9rdance with the seniority list prepared by the respondent under the scheme of the regularisation. On the face of this clear admission of the workman the Labour Court has, in my opinion, clearly exceeded its jurisdiction by directing the respondent to regularise the respondent w.e.f 19.5.1980 when admittedly persons senior to him have been regularised as per seniority list and no person junior to him was regularised before his regularisation w.e.f. 1.4.1990. It was on the basis of this seniority list, that respondent No. 1 was regularised w.e.f. 1st April, 1990 when his turn for regularisation came as per the seniority list of casual workers. The Supreme Court had itself given a direction to the Municipal Corporation of Delhi in Jeet Singh and Ors. v. Municipal Corporation of Delhi, : AIR 1987 SC1781 to frame scheme of regularisation. It was pursuant to the direction given by the Supreme Court that the petitioner had framed the scheme of regularisation and regularised respondent No. 1 from 1st April, 1990 in accordance with the seniority list prepared under the scheme. It is thus clear that respondent No. 1 could not be regularised otherwise than under the scheme framed by the petitioner pursuant to the orders of the Supreme Court and that having been done, no case was made out by the said respondent for being regularised from the date of his initial engagement by the petitioner. In this view of the matter, the award of the Labour Court cannot be sustained. I, accordingly, allow this petition; make the rule absolute and set aside the impugned award made by the Industrial Tribunal leaving the parties, however, to bear their own costs.