WORKMEN Vs. MANAGEMENT OF DHENKANAL MUNICIPALITY
HIGH COURT OF ORISSA
Management Of Dhenkanal Municipality
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A. K. Mishra, J. -
(1.) Petitioner- Dhenkanal Mehentar Sangh has filed this writ petition to quash the order dated 11.04.2007 of the Presiding Officer, Labour Court, Bhubaneswar (hereinafter referred to as "Labur Court) in I.D. Case No. 122 of 1995 in answering the reference that the workmen have no right as such to be regularized in service and to claim equal pay with their regular counterpart.
1.1. The petitioner is an association of workmen who are sweepers and sweepresses doing the work of sanitation under Dhenkanal Municipality. The workmen are NMR (Nominal Muster Roll) sweepers and sweepresses and DLR sweepers and sweepresses engaged by the Management of Dhenkanal Municipality-Opp.Party No.1. The management has also engaged regular sweepers and sweepresses against the sanctioned posts. Both the regular workmen employees and NMR sweepers and sweepresses work the same job inter changeably but NMR sweepers and sweepreses are not paid equally. A dispute arose, Government of Orissa, Labour and Employment Department vide Notification No. 14679/LE dated 21.10.1991 made the following reference to the Labour Court:-
(1) Whether the NMR Sweepers and Sweepresses borne in the Nominal Muster Roll on daily wage of Dhenkanal Municipality are entitled to equal wage with their regular counter parts? If so, what should be details?
(2) Whether Sweepers and Sweepresses of Dhenkanal Municipality borne in the Nominal Muster Roll on daily wage are entitled to regularization in the permanent posts of Sweepers and Sweepresses lying vacant? If so, what should be details?
(2.) Before the Labour Court, the workmen put forth their grievance that NMR and DLR sweepers are being paid a sum of Rs.650/-whereas their counterpart in regular jobs are being paid a monthly salary of Rs.1800/- and as the sanctioned posts are lying vacant, they should be regularized and be paid equally for having done similar work.
2.1. The management filed written statement stating that the workmen who are NMR sweepers and sweepresses are not entitled to get their pay equal to their counterpart in the regular cadre as they do not carry responsibility, loyalty, sincerity and integrity like regular employees. The financial position of the management is not sound for which the regular posts are lying vacant. The management has prepared a gradation list of sweepers and sweepresses engaged by it after final discussion with all the workmen concerned and regular posts of sweepers and sweepresses would be filled up from out of the said gradation list keeping in view the financial position.
2.2. Both workmen and management adduced oral and documentary evidence. Learned Labour Court framed issues in consonance with the requirement of the reference. Learned Labour Court on analysis of evidence on record has recorded the following findings that:-
(i) There is absolutely no defference between the nature of work of permanent sweepers and sweepresses of the management and the NMR sweepers and sweepresses of the said establishment who are workmen of this case.
(ii) There is wide discrepancy between salary/wages of permanent employees and their counterparts who are NMRs of this case(Para-8).
(iii) The regular sweepers and sweepresses do not posses any higher qualification and the works of both regular sweepers and sweepresses and DLR sweepers and sweepresses are equal (Para.10).
(iv) Undoubtedly the workmen of this case are doing similar work as their counter parts and no specific qualification is required for being appointed as a sweeper and sweepress although in itself it is a valid ground to move the Management to consider the case of DLR/NMR sweepers and sweepresses for equally pay with their regular counterparts.
2.3. Learned Labour Court has taken note of one memorandum of settlement Ext.3 of which Clause-14 reads as follows:-
"14. 25 posts of sweepers and sweepress are lying vacant due to retirement on superannuation (21) and in service death (4). It was agreed upon to fill up the existing 21 vacancies arising due to retirement on superannuation from among the NMR sweepers/sweepresses engaged in cleaning on seniority and suitability. Before filling up the posts a gradation list of the NMRs. Would be prepared, duly published, inviting objections and approved. Vacancy due to in service death would be filled up under Rehabilitation Assistance Scheme as per procedure. This will be without prejudice to I.D. Case No. 122 of 1995."
Then learned Labour Court observed that the Management had agreed to fill up 21 vacancies arising due to retirement on superannuation from among the NMRs. after preparation of Gradation list by observing all formalities.
2.4. Having reached the above findings, learned Labour Court relying upon the decision of the Hon'ble Apex Court in the case of Secretary, State of Karnataka Vrs. Uma Devi and others, 2006 AIR(SC) 1806, has concluded that ad hoc or irregular appointees like NMR or DLR could not claim regularization of service as a matter of right. Further it is concluded that it is highly improper for Judges to step into this sphere to fix pay scale and blanket direction cannot be given to the management. As such, the reference was answered in negative.
(3.) Opposite party No.1 the Management has filed counter in this writ challenging its maintainability for want of necessary party, i.e. Government of Orissa, Labour and Employment Department. There is no scope to make judicial review in a certiorari proceeding and the proceeding in I.D. Case No. 122 of 1995 before Labour Court was not maintainable being hit under Section 73-C(c) of the Orissa Municipal Act, 1950. The petitioner workmen having not completed ten years of service cannot claim regularization of service.
3.1. The petitioner filed a rejoinder stating that the amendment of Orissa Municipal Act, 1950 was given effect from 19.5.1997 and it could not operate retrospectively to take away the rights already accrued to the workmen. The plea of non-joinder of necessary party is no more available as opposite party nos.3 and 4 are Government of Orissa, Labour and Employment Department and Director, Municipal Administration respectively.
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