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CASE NO.:

Appeal (civil) 1214 of 2007

PETITIONER:

New Delhi Municipal Council

RESPONDENT:

Pan Singh & Ors

DATE OF JUDGMENT: 08/03/2007

BENCH:

S.B. Sinha & Markandey Katju

JUDGMENT:

J U D G M E N T

[Arising out of SLP(C) No. 21024 of 2005]

S.B. Sinha, J.

Leave granted.

Appellant is a local authority constituted under the New Delhi

Municipal Act, 1994. It has been performing its municipal functions in the

New Delhi area; one of them being distribution of electricity to the

consumers upon buying the same from the Electricity Supply Companies.

For the said purpose, it has a electricity department. In the said department,

there were posts of Meter Readers as also Shifts Incharge. The pay scale of

Shifts In-charge was Rs. 220-400 and that of the Meter Readers Rs. 185-300.

The post of Meter Readers was meant to be filled up by direct recruitment.

17 senior most Shift In charge, however, for certain reasons opted to become

Meter Readers. As they were working in a higher scale of pay, their pay was

protected. Such protection of pay was given to them by an Order dated

10.2.1982, stating :

"1. The matter regarding revision of pay scale from Rs.

185-300 to Rs. 220-440 of those Meter Readers who were

promoted as Meter Readers from the Cadre of Shift-In-

charge II Grade was discussed in the meeting held on

15.12.81 at 11.00 AM under the Chairmanship of the

Administrator. It was decided by the Administrator that

the matter be examined whether higher pay scale of Rs.

220-400 could be given to the 17 such senior-most Meter

Readers, purely as on ad hoc measure which would be

personal to them.

2. Accordingly, the case was discussed in the meeting

of Heads of Departments namely CE(E)/CE(C)/FA,CA,

Secretary, MOH, DD(H) and LWO headed by the

Administrator on 06.02.1982 and was decided that the pay

scale of Rs. 220-10-300-EB-400 be allowed w.e.f. 6.2.82

to all those 17 Meter Readers who had previously worked

as Shift In charge Grade II, but this revision of scale will

be personal to them without making any precedent\005"

Some other Meter Readers who were in services of the appellant at the

relevant time raised an industrial dispute purported to be on the premise that

they had been discriminated against. Reference was made to the Presiding

Officer, Industrial Tribunal No. 3, Delhi for determination of inter-alia the

following industrial dispute:-

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"1. Whether the pay scale of Meter Readers should be

revised from Rs. 520-815 to Rs. 590-1000/- as has been

done in case of 17 Meter Readers namely 1) Shri Turen

Singh, 2) Ram Chander Singh, 3) Shri Rameshwar Lal

Bali, 4. Shri Prem Chand Sharma, 5. Raj Kumar Kalia

(6) Sh. Prabhu Dayal, (7) Sh. Anand Kishore Aggarwal

(8) Shri Jagannath Parshad (9) Sh. D.P. Malhotra (10)

Sh. Bhu Dev Sharma (11) Sh. Sukh Dev Singh (12)

Shri Ajaib Singh (13) Shri H.C. Chauhan (14) Shri K.S.

Rawat (15) Shri Devi Sanai, (16) Shri Mansa Ram, (17)

Shri Subhash Chand Sharma and if so what directions

are necessary in this respect?"

Respondents were not parties therein. They did not file any

application for their impleadment. By reason of an Award dated 7.1.1998,

the Industrial Court directed :-

"In the light of the above observations of the meter

readers, who were in service at the time when the benefit

was given to 17 meter readers, whose names are morefully

detailed in Annexure B of claim statement are entitled to

get the benefit of the said order in the similar manner in

which the same has been given to those 17 meter readers

purely as an adhoc measure to be personal to them and

discrimination made by the management amongst the same

class of meter readers is an act of arbitrariness and

amounts to misuse of the principles of law. The

management is directed to pay the arrears of the said

amount on the same analogy to which 17 meter readers

have been given benefit to the same as per order dated

12.02.82 within a period of 6 months from the date the

award become enforceable under law failing which the

meter readers of the said period will be entitled to get an

interest @ 18% per annum to the same..."

The respondents were appointed after 12.2.1982 i.e during the period

1.4.1982 and 3.6.1984. They filed a Writ Petition claiming parity in the

matter of grant of scale of pay by filing a Writ Petition with the Awardees

before the High Court of Delhi. By reason of the impugned Judgment, the

said Writ Petitions have been allowed stating that although they are not

covered by the Award, the appellant being model employer must treat the

employees similarly situated and, thus as the respondents had passed the test

in June, 1981, they could not be denied the pay scale which has been granted

to them.

Respondent filed the Writ Petition in July, 1999 claiming inter-alia the

following reliefs:-

"a) Issue an appropriate writ, order or direction to the

Respondent to grant to the petitioners the benefit of the

revised pay scale, as had been granted to other meter

readers vide office order dated 10.02.1982 (Annexure-

B). Office order dated 23.12.1998 (Annexure-D) and

office order dated 17.5.1999 (Annexure \026 D-1)

alongwith all the consequential reliefs.

b) Grant to the petitioners the appropriate amount of

damages including cost of the present petition as also

such other or further relief's as this Hon'ble Court may

deem fit, proper and expedient in the facts and

circumstances of the present case."

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Mr. Rakesh K. Khanna, learned senior counsel appearing on behalf of

the appellant would urge that once the cut off date was fixed by the Tribunal

as on 6.2.1982, the respondents, having joined the services of the appellant

thereafter, could not have been directed to be treated alike in the matter of

grant of the same scale of pay. In any event, the Writ Petitions having been

filed in July, 1999, the High Court committed a serious illegality in directing

back wages in their favour.

Ms. Asha Jain Madan, learned counsel appearing on behalf of the

respondent, on the other hand, would submit that the Award of the Industrial

Tribunal was binding upon the appellant in terms of Section 18(3)(b) of the

Industrial Disputes Act and in that view of the matter, as respondents

perform same or similar nature of duties as are performed by the other

workmen, they were entitled to be treated alike. The learned counsel would

contend that the respondent did not raise a separate industrial dispute as they

had all along been under the impression that they would be covered by the

Award which may be made in the said Reference.

Respondents were appointed on different dates, admittedly after

6.2.1982. Entitlement of an employee to be placed on a particular scale of

pay would depend upon the terms and conditions laid down in the contract

of service.

Seventeen persons who were granted higher scale of pay as noticed

hereinbefore had been working as Shifts in charge. As Shifts In charge, they

were entitled to a higher scale of pay. They were given a higher scale so as

to protect their pay which were personal to them and that too on an ad-hoc

measure. It was not by way of a revision of scale of pay as understood in

the ordinary sense of the term.

Those Meter Readers who were purported to be similarly situated

meaning thereby those who were in service as on 12.2.1982 i.e the date

when the purported pay scales of 17 senior most Meter Readers on ad-hoc

basis were revised, raised an industrial dispute. The Industrial Tribunal in

its Award proceeded on the basis that the concerned workmen were entitled

to the benefit of higher scale as they were similarly situated to those 17

senior most Meter Readers.

The direction in terms of the Award was confined only to those who

were in employment at the time when the said benefit was given to the said

17 Meter Readers.

They, thus, formed a class by themselves. A cut-off date having been

fixed by the Tribunal, those who were thus not similarly situated, were to be

treated to have formed a different class. They could not be treated alike with

the others. The High Court, unfortunately, has not considered this aspect of

the matter.

Submission of learned counsel for the respondent that Section

18(3)(b) of the Industrial Disputes Act would govern the Award, in our

opinion is not correct. Section 18(3)(b) although, provides that all workmen

who were employed in an establishment, subsequently become employed

therein would also be bound by the Award of the Industrial Tribunal. But,

they must be entitled to the similar benefits. Respondents were not parties to

the said dispute. They did not raise any grievance in regard to their

conditions of service.

Had they been parties to the Reference, the matter might have been

otherwise, as was held in Punjab National Bank And Others v. Manjeet

Singh And Another [(2006) 8 SCC 647], whereupon Ms. Asha Jain Madan,

learned counsel for respondent strongly relied upon. Section 18(3)(b) does

not postulate that although the concerned workmen would form different

classes, an Award made in favour of another class of workmen would

automatically be extended to the other. In Punjab National Bank (supra), the

workman contended that they were not bound by the Award, which

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contention was rejected having regard to the fact that they were similarly

situated and in fact were parties in the industrial disputes and were

represented through their Union.

There is another aspect of the matter which cannot be lost sight of.

Respondents herein filed a Writ Petition after 17 years. They did not agitate

their grievances for a long time. They, as noticed herein, did not claim

parity with the 17 workmen at the earliest possible opportunity. They did

not implead themselves as parties even in the reference made by the State

before the Industrial Tribunal. It is not their case that after 1982, those

employees who were employed or who were recruited after the cut-off date

have been granted the said scale of pay. After such a long time, therefore,

the Writ Petitions could not have been entertained even if they are similarly

situated. It is trite that the discretionary jurisdiction may not be exercised in

favour of those who approach the Court after a long time. Delay and laches

are relevant factors for exercise of equitable jurisdiction. See Govt. of W.B.

v. Tarun K. Roy And Others [(2004) 1 SCC 347], Chairman, U.P. Jal Nigam

& Anr. v. Jaswant Singh And Anr. [2006 (12) SCALE 347] and Karnataka

Power Corpn. Ltd. through its Chairman & Managing Director and Another

v. K. Thangappan and Another [(2006) 4 SCC 322]

Although, there is no period of limitation provided for filing a Writ

Petition under Article 226 of the Constitution of India, ordinarily, Writ

Petition should be filed within a reasonable time.

See Lipton India Ltd. And Others v. Union of India And Others

[(1994) 6 SCC 524], M.R. Gupta v. Union of India And Others [(1995) 5

SCC 628].

In Shiv Dass v. Union of India & Ors. [ 2007(2) SCALE 325 : (2007)

1 Supreme 455], this Court held:-

"9. It has been pointed out by this Court in a

number of cases that representations would not be

adequate explanation to take care of delay. This was

first stated in K.V. Raja Lakshmiah v. State of Mysore

(AIR 1967 SC 993). There is a limit to the time which

can be considered reasonable for making

representations and if the Government had turned down

one representation the making of another representation

on similar lines will not explain the delay. In State of

Orissa v. Sri Pyarimohan Samantaray, (AIR 1976 SC

2617) making of repeated representations was not

regarded as satisfactory explanation of the delay. In

that case the petition had been dismissed for delay

alone. See State of Orissa v. Arun Kumar (AIR 1976

SC 1639 also).

10. In the case of pension the cause of action

actually continues from month to month. That,

however, cannot be a ground to overlook delay in filing

the petition. It would depend upon the fact of each

case. If petition is filed beyond a reasonable period say

three years normally the Court would reject the same or

restrict the relief which could be granted to a reasonable

period of about three years. The High Court did not

examine whether on merit appellant had a case. If on

merits it would have found that there was no scope for

interference, it would have dismissed the writ petition

on that score alone."

We, therefore, are of the opinion that it was not a fit case where the

High Court should have exercised its discretionary jurisdiction in favour of

the respondents herein.

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For the reasons aforementioned, impugned Judgment cannot be

sustained which is set aside accordingly. The Appeal is allowed. In the

facts and circumstances of the case, however, there shall be no order as to

costs.