BHAGWATI PRASAD AND ORS.versusDELHI STATE MINERAL DEVELOPMENT CORPORATION

                     BHAGWATI PRASAD AND ORS.
                                                                                A
                                        v.
    DELHI STATE MINERAL DEVELOPMENT CORPORATION

                            DECEMBER 15, 1989

              [RANGANATH MISRA, P.B. SAWANT AND                                 B
                     K. RAMASWAMY, JJ.]

         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.
                                                                                c
           Civil Services: Daily rated workers discharging duties effectively
    over a long period-Suitability of for regularisation and confirmation-
    Requirement of initial minimum qualifications-Whether could be
    insisted upon.
                                                                                D
          The petitioners, daily-rated workers of the respondent-Corpora-
    tion appointed between 1983 and 1986, songht a writ of mandamns to
    regularise their services in the respective units and payment of wages at
    par with regnlarly appointed employees of the respondent performing
    the same or similar duties.
                                                                                E
          The Industrial Tribunal, which was directed by the Court to
    examine . the matter, found that all the petitfoners/workmen were
    performing same or similar duties as were performed by the incum-
    bents of Gronp 'D' posts of the respondent-Corporatibn.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   F
    to equal pay for equal work in relation to the regular employees. It
    further held that non-regularisation due to uncertainty of the contract
    was only a pretence which was not valid in law, and.that reversion of
    some of the petitioners for lack of requ,isite educational qualification
    was discriminatory, arbitrary and an abuse of power by the
    management.                                                                 G

           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 contended that it had not consented to
    dispense with adducing oral evidence, and that despite the direction of
    the CourtJo submit .a preliminary report the Tribunal was-wrong in          H

                                      513
    514         SUPREME COURT REIQRTS               [1989] Supp. 2 S.C.R.

A stating that the respondent had agreed that the Tribunal would send the
  final report.

          Allowing the writ petitions, the Court,

        HELD: l. The petitioners are entitled to equal pay at par with
B the persons appointed on regular basis to the similar post or dis-
  charge similar duties in the respondent-Corporation, and are enti-
  tled 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
C 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 proceedings recorded by
o the Tribunal were incorrect. [517C-D]                                         ;
         3. Practical experience would always aid a person ta effectively
  discharge the duties and is a sure guide to assess his 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
E 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
F were allowed to work for a considerable length of time as such, it would
  be hard and harsh to deny them confirmation in the respective 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. ~ince the petitioners satisfy the require-
G ment of three years' service so calculated, 40 of the senior-most of
  them should be regularised with immediate effect and the remain-
  ing 118 should be regularised in a phased manner before April I,
  1991 and promoted to the next higher post according to the standing
  orders. IS17G; 518B-DJ

H         4. Those of the petitioners who were ousted from service pending
           B. PRASAD v. DELHI STATE· !K. RAMASWAMY, J.]              515

the writ petitions to be reinstated innnediately. [SI8D-E]
                                                                            A
     CIVIL ORIGINAL JURISDICTION: Writ Petition Nos. 100
and 1078 of 1988.

      (Under Article 32 of Constitution of India).
                                                                            B
      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
                                                                            c
      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         D
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 admis-
sible allowances at par with regularly appointed employees of the
respondent performing the same or similar duties. Admittedly, they          E
have been appointed on daily wages between 1983 and 1986 and they
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 service. As they are not being paid equal wages at
par with regular employees, this offends their right to equality of pa)     F
under Art. 14 and such action is contrary to the provisions 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 hearing the counsel on either side, directed the
Industrial Tribunal at Delhi to examine the contentions of the peti- G
tioners 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 H
    516          SUPREME COURT REPORTS               [1989] Supp. 2 S.C.R.

A 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.

B          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 perform-
    ing 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
C   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 designations such as Wages Slip, Truck Loading Clerk, Attend·
D   ance Keeper Clerk, Drill Man, Office Work, Stone Bricks Clerk
     Fitter Survey Section, Pipe Fitter, Operator, Pump Operator, Crech1
    Check Post Clerk, Permit Clerk etc., which go to suggest that thos1
     workmen were performing skilled or semi-skilled jobs or work of cleri
    cal nature. It, therefore, suggested that the workmen with these desig
    nations may also be equated with incumbents of group 'D' posts
E    However, it held that their scale of pay and the entitlement to th1
    wages should be worked out in an inquiry under section 33-C(2) of tht
     Industrial Disputes Act. It also further found that since the petitionen
     have been appointed way back between 1983 and 1986, they are to b<
     regularised; first l/3rd of them immediately in the pay scale of Rs.196-
     232 or the corresponding revised scale with allowances; another one-
F    third 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
G    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 mining lease after its expiry was belied by the subse-
    'quent advertisement calling applications for filling up the vacancies.
     Accordingly, it held that non'regularisation due to uncertainty of the
H    contract is only a pretence and is not valid in law. It also held that
           B. PRASAD v. DELHI STATE [K. RAMASWAMY, J.]               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     A
and their reversion for lack of requisite 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.
                                                                            B
        5. Shri R.K. Jain, learned counsel for the respondent, has vehe-
 mently assailed the tenability of all the recommendations. 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 sub-
 mit a p'reliminary report the Tribunal is wrong in stating that the
 respondt:nt agreed that the Tribunal would send the final report. He
 disputed the findings on merits pointing out various contentions raised    c
 by the respondent in its pleading, objections and the documents filed
 before the Tribunal. It is now settled law that th·e 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        D
 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 evidepce and that the report should be the pre-      b
 liminary report cannot be countenanced. 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 respon-       F
 dent, 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 ofRs.25 per day.

     6. The main controversy centres round the question whether
some petitioners are possessed of the requisite qualifications io hold      G
the posts so as to entitle them to be confirmed in the respective posts
held by them. The indisputable facts are· that the petitioners were
appointed between 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 ex-
perience would always aid the person to effectively discharge the           H
    518         SUPREME COURT REPORTS                [ 1989] Supp. 2 S.C.R.

A duties and is a sure guide to assess the suitability. The initial minimum
  educational qualification prescribed for the different posts is undou-
  btedly 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
B 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 educa-
  tional qualifications. In our view, three years' experience, ignoring
  artificial break in service for short period/periods created by the
  respondent, in the circumstances, would be sufficient for confirma-
  tion. If there is a gap of more than three months between the period of
  termination and re-appointment that period may be excluded in the
C 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 regulari-
  sed in a phased manner, before April 1, 1991 and promoted to the next
  higher post according to the standing orders. All the petitioners are
D 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
E 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 remuneration of
  the Industrial Tribunal. The writ petitions are accordingly allowed,
  but without costs.

F P.S.S.                                                   Petitions allowed.