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HIGH COURT OF DELHI : NEW DELHI

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CM No.10568/2010 in WP (C) No.5202/2010

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Judgment decided on : October 05, 2010

Indian Airlines Kamgar Sanghtan ......Petitioner Through: Mr. V.K. Rao, Sr. Adv. with Mr. Saket Sikri, Adv. Versus National Aviation Company of India Ltd. & Anr. .....Respondents Through: Mr. Lalit Bhasin, Ms. Ratna Dhingra, Ms. Shreya Sharma, Advs. for R-1. Mr. Ashok Singh, Adv. for R-2. Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? MANMOHAN SINGH, J. 1.

Indian Air Lines Kamgar Sangthan has filed the present writ

petition for issuance of a writ of mandamus thereby seeking direction against the respondents to regularize the service of the petitioners from the date of their joining and also grant service benefits equivalent to the other employees working on similar posts with the petitioners. 2.

The petitioners have been working with the respondent No.1

continuously with effect from 1997 against the permanent regular vacancies. According to the petitioners, a legitimate right has accrued

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in their favour to get regularization and also to receive service benefits at par with the other regular employees. The contention of the petitioner is that as per information given by the respondents themselves under RTI Act, 2005, about 2500 vacancies in various posts are existing with the respondent No.1.

There were earlier litigations between some of

the petitioners and the respondents before this Court as well as in the Supreme Court pertaining to the regularization etc.

Some of the

petitioners filed a writ petition before this Court challenging the termination and seeking relief of regularization and equal pay for equal work and by order dated 12.7.1998, the writ petition was disposed of stating that the priority be given to the petitioners in the matter of regularization. 3.

One of the grievances of the petitioners is that despite the

order as well as more than 2500 vacancies which are existing with the respondent No.1, they have not been regularized but also they are being deprived by the respondent No.1 to receive the service benefits at par with the regular employees.

The writ petition along with the interim

application was listed before this Court on 4.8.2010 when the show cause notice was issued to the respondents. In the interim application being CM No.10261/2010, the limited order was passed to the effect that till next date of hearing, the respondents shall not dislocate the petitioners from their present place of posting within Delhi. The next date of hearing in the matter is 16.12.2010.

Subsequently, the

petitioners filed a present application being CM No.10568/2010 under Section 151 CPC for seeking direction against the respondents to pay WP (C) No.5202/2010

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daily wages to the petitioners as per notification issued by the Appropriate Government by adding the component of variable DA, HRA and CCA with effect from 1.2.2010. 4.

The contention of the petitioners in this application is that the

respondents are denying the minimum wages to the petitioners as notified by the Delhi Government with effect from 1.2.2010. The action of the respondents is malafide and not sustainable in law. The said notification shows that unskilled worker is entitled to get Rs.203/- per day, the semi-skilled worker is entitled to get Rs.225/- per day and a skilled worker is entitled to get Rs.248/- per day. Hence, the minimum wages as determined by the Appropriate Government must be paid to the petitioners with the aforesaid components with effect from 1.2.2010. 5.

It is also submitted by the petitioners that they are entitled to

the said component in terms of the past practice of the respondents whereby the minimum wages and different percentage given to unskilled, semi-skilled and skilled workers by Govt. of Delhi and by NACIL in the year 1996, 1999, 2002 and 2005. The contention of the petitioners is that after the year 2008, the respondents have not increased the minimum wages of the unskilled and semi-skilled employees. As per the petitioners if the components as prayed in the application are added, the semi-skilled employees will get daily wages of Rs.333.58/- and the unskilled employees will get daily wages of Rs.314.76/-. It is stated that the action of the respondents is arbitrary in nature and is violative of Articles 14, 16, 21 and 39(d) of the Constitution of India. It is also prayed that the relief of the said amount WP (C) No.5202/2010

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be granted retrospectively with effect from 1.2.2010. 6.

The application of the petitioners is strongly opposed by the

respondent No.1 on various grounds including the objection of pendency of the earlier application for the same relief.

The other

objections are that prior to the filing of the present writ petition, the petitioners had already approached the Industrial Tribunal and raised the industrial dispute on the substantially similar issues which is pending before the Regional Labour Commissioner, New Delhi. Since the writ petition itself is not maintainable, on this ground alone amongst others, the relief sought in the application cannot be granted. 7.

On merit it is stated that Aviation Industry is going through

turbulent times and is facing critical financial situation and in thereof, in the year 2008 the respondents had taken a conscious decision not to increase the minimum wages of daily wager as per the earlier practice. It is submitted that the petitioners while claiming the relief made in the application are in a way stating that they be placed in regular pay scale and are seeking regularization of their service through backdoor by obtaining interim relief and if the relief as granted it will not only amount to regularising their services to which they are not entitled but will also make the entire writ petition infructuous. 8.

It is also stated by the counsel for the respondent No.1 that

only the permanent employees of the company are entitled to DA, HRA and CCA. The nature of the engagement of the petitioners is casual and they are not entitled to these allowances.

Granting the same relief

would amount to regularization for which they are not entitled through WP (C) No.5202/2010

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the backdoor. 9.

As far as first objection of pendency of the earlier application

filed by the petitioners is concerned, the relief sought by the petitioners in both the applications are materially dissimilar for the reason that in the present application the petitioners are seeking the relief under the notification issued by the Government w.e.f. 1.2.2010 and not as per the pay scale of the regular employees of the respondent No.1. There is force in the submission of the learned counsel for the petitioners that in case the writ petition is allowed after hearing on merit, then the petitioners would be entitled for all the benefits at par with the regular employees of the respondent No.1 including the leave benefits.

At this

stage, the petitioners are praying for the grant of minimum wages of the unskilled/semi-skilled employees of daily and casual employee as per the notification issued by the Government and other component in terms of past practice. Therefore, the first submission of the respondent No.1 cannot be accepted. 10.

As regard the second submission of the respondent No.1

regarding the pendency of the alternative remedy taken by the petitioners before the Industrial Tribunal is concerned, the respondents have yet to file the counter affidavit. The maintainability of the writ petition no doubt has to be considered at the time of hearing of the writ petition. 11.

As far as relief claimed by the petitioners in this application

is concerned, Mr. Lalit Bhasin, counsel for the respondent No.1, has argued that the said relief could only be granted by the Industrial WP (C) No.5202/2010

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Tribunal under Section 33C (2) of the Industrial Disputes Act read with Schedule II and III of the Rules. It is an undisputed fact that the petitioners in this application are not claiming the same benefits which are extended to the permanent employees of the company. Rather it has been admitted in the writ petition that they are causal workers and claiming the relief under the notification issued by the Central Government and praying that the interim arrangement be made till the final disposal of the present writ petition. Thus, granting of the interim relief, if any, would not amount to regularizing their services as neither the petitioners are being placed in the regular pay scale nor their services are being regularized. Had the petitioner claimed the same benefits/pay scale at par with the regular employees of the respondent No.1 then there would have been force in the submission of the respondent No.1.

However, the case of the

petitioner is about benefit of minimum wages be issued to the petitioner in view of the notification issued by the Central Government, thus, the application is maintainable as this court is not adjudicating the issue of granting the benefits at par with regular employees. 12.

As regard the submission of the respondent No.1 that the

respondent is facing critical financial situation, it appears from the material placed by the petitioners that the respondent No.1 has revised the scales of permanent employees and other allowances with effect from the year 2000.

The respondent No.1 in its letter dated 7.7.2009

admits about 2500 vacancies are existing. The respondents are not disputing the fact that they are also out sourcing their work despite the WP (C) No.5202/2010

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order dated 12.7.1998 wherein it was observed by this Court to the respondent No.1 to give priority to the petitioners in the matter of regularization. 13.

Under these circumstances, without considering the matter

on merit, as main writ petition is listed before the Court on 16.12.2010, this court is of the considered view that the petitioners till the disposal of the writ petition shall be entitled to get the benefit of daily wages as per the notification issued by the Appropriate Government from the respondent No.1 and other benefits in terms of past practice. As far as arrears from the period 1.2.2010 are concerned, the respondent No.1 is granted two weeks time to pay the same. 14.

With these directions the application is disposed of.

MANMOHAN SINGH, J. OCTOBER 05, 2010 jk

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