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Delhi District Court

Ishwari Prasad vs M/S Ashok Hotel on 14 July, 2009

                                      1

               IN THE COURT OF SH BABU LAL: POIT-II,
                   KARKARDOOMA COURTS, DELHI



                               I.D. No.121/08


Ishwari Prasad                                             Workman
S/o Late Sh. Shree Ram
Represented by S.S. Upadhyay, President
Ashok Hotel Mazdoor Janta Union, 166,
Pratap Nagar, opposite Mayur Vihar,
Pocket IV, New Delhi.

                        Versus

M/s Ashok Hotel                                            Management
A unit of ITDC,
50-B, Chankya Puri, New Delhi 212.

             Date of institution                30.09.08
             Arguments heard on                 09.07.09
             Date of Award                      14.07.09

AWARD


1.

Workman has raised the present industrial dispute through Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this tribunal for adjudication in the following terms of reference:-

(a)''Whether the demand for appointment on compassionate ground to Sh. Ishwari Prasad S/o Late Sh. Shree Ram, father a gap of more than 12 years from the date Management rejected his request is justified, and if answer to (a) above is in affirmative, ( b) whether he is entitled to appointment on compassionate ground and if yes, what directions are necessary in this respect ?'' 2

2. Facts giving rise to the reference and as contained in the statement of claim are Shree Ram, father of the claimant was working with the Management as electrician. He allegedly expired on 12.11.93. On death of Shree Ram, claimant Ishwari Prasad allegedly applied for suitable job vide his application dated 10.12.93 on compassionate ground. The same was rejected by the Management relying upon a circular dated 20.9.94 which was not in force at the time of death of his father and at the time when application for appointment on compassionate ground was made by the claimant. It is alleged that nobody from the family of deceased employee was in employment of the Management, therefore, application of the claimant could not have been rejected. It is alleged that before issuance of circular dated 20.9.94 the Management had been giving employment to dependents of deceased employees. It is alleged that case of the claimant was taken up by local MLA through Tourism Minister Sh. Madan Lal Khurana but of no avail. Union is alleged to have shot up number of letters to the Management but same remained unanswered. Even a demand notice dated 28.9.06 was served on the Management but no action was taken. It is alleged that when claimant did not get any relief from the Management, he approached Hon'ble High Court in writ petition but same was dismissed in default. It is prayed that claimant be given 3 appointment on compassionate ground.

3. In the WS, preliminary objection has been taken that reference is bad inasmuch as dispute is raised after 12 years after rejection his application on compassionate ground, therefore, same is not maintainable. It is also alleged that claim of the claimant is bad inasmuch he had filed a writ petition seeking similar relief which was dismissed vide order dated 18.11.2002, therefore, he is precluded from raising the present dispute on ground of principles of res-judicata. It is alleged that appointment on compassionate ground is governed by policy adopted by the Management according to which appointment on compassionate ground can not be claimed as a matter of right. It is alleged that representation of the claimant was rightly rejected inasmuch as two of his brothers were found already working as such claimant did not meet the prescribed criteria. It is alleged that claimant is not entitled to any relief.

4. On the basis of pleadings of the parties, following issues were framed :-

(1) Whether the claim of the workman is not maintainable due to delay and latches ?

(2) Whether the present reference is not maintainable on ground of res-judicata as alleged by the Management ?

(3) As per terms of reference.

5. In order to prove his case, workman has filed affidavit of 4 Sh. S.S.Upadhyay, President of the Union and also filed his affidavit and have been examined, cross examined as WW--1 and WW--2 respectively. On the other hand, Management has filed affidavit of Mr Joseph Mathias who has been examined and cross examined as MW--1.

6. I have heard AR for the parties and have carefully gone through record of the case. My issuewise findings are as under :-

7. Findings on issue No 1 Issue No 1 is whether the claim of the workman is not maintainable due to delay and latches. It is important to note that reference is not ''if demand for appointment of the claimant on compassionate ground is justified''. Rather reference is whether demand for appointment on compassionate ground ''after a gap of more than 12 years'' is justified. If this part of the reference is considered and found to be justified, only then second part of reference can be looked into.

8. According to WW--2 Ishwari Parsad, his father Shree Ram was working with the Management who expired on 12.11.1993. he is deposed to have made application dated 10.12.93 Ex WW2/II for a suitable job which was dismissed vide order dated 10.7.96 Ex WW2/IV. Fact that father of the claimant had been employed with the Management has not been disputed. It has also not been disputed that he died in the year 1993. it is also not in dispute that 5 application Ex WW2/II was given by the claimant on 10.12.93 for appointment on compassionate ground. Claimant was required to furnish certain documents vide Ex WW2/III. On examination of his case, the Management vide letter Ex WW2/IV intimated to the claimant that his claim for appointment on compassionate ground has not been approved because his two brothers have been working. Again representations Ex WW2/V and WW2/VI were made which Management rejected vide order Ex WW2/VIII to the effect that his claim has been re-examined and since two of his brothers have been earning, therefore, he was not found fit for appointment on compassionate ground. This letter was addressed to mother of the claimant. This intimation is dated 8.10.97. subsequently representations were also made by the Union to the Management which are Ex WW1/3 and WW1/7. This request was again declined vide order Ex WW2/IX on the ground that two of her sons are already working.

9. MW--1 Mr Joseph Mathias, Manager ( HR) in his affidavit has deposed that present dispute raised after 12 years after his application for appointment on compassionate ground was rejected, his not maintainable.

10. From the evidence referred to above it is clear that present dispute has been raised nearly after 12 years after rejected of application of the claimant for appointment on compassionate 6 ground. In S.Shalimar Works Limited vs Their Workmen AIR 1959 SC 1217, it was held that though no limitation is prescribed for making reference of the dispute to an Industrial Tribunal, nevertheless, it has to be made within a reasonable period. In that case delay of 4 years in raising industrial dispute was held to be fatal. In another Authority reported as Nedungadi Bank Ltd vs K.P. Madhavakutty and others AIR 2000 SC 839, delay of 7 years was held to be fatal and disentitled the workman to any relief. Similar view was reiterated in S.M. Nilajkar and others vs Telecom District Manager, Karnataka 2003(4) SCC 27. Relying upon abovesaid authorities, our own Hon'ble High Court in Satbir Singh vs Management of Suptd. Engineer and others 138(2007) DLT 528 ( DHC), has been held that inordinate and unexplained delay in raising industrial dispute would defeat the rights of the workman and would disentitle him to any relief. In view of these authorities, I hold that present dispute being stale one is not maintainable and same is liable to be dismissed on ground of delay and latches.

11. Findings on issue No 2 Issue No 2 is whether whether the present reference is not maintainable on ground of res-judicata as alleged by the Management. Workman in his pleadings and evidence has categorically stated that after his application for appointment on 7 compassionate ground was rejected by the Management, he approached the Hon'ble High Court in writ petition for appointment, however, same was also dismissed in default for non appearance of his counsel.

12. It is important to note that claimant has himself placed on record copies of the writ petitions as Ex WW2/XI which he had filed in Hon'ble High Court on 18.3.1999. This writ petition was dismissed vide order dated 1.8.06. It was observed by their lordships of Hon'ble High Court that petitioner can not get any relief for the reason he was seeking to urge on a stale claim. According to order dated 18.11.03, claim of the petitioner for compassionate appointment rejected on 10.3.1996 was highly belated. In the said order, Registry was directed not to entertain any restoration application in the said case inasmuch as there were repeated dismissals in default and dismissal of restoration applications. In other words, this order of Hon'ble High Court in dismissing the claim of claimant in the writ petition has become final. Subsequent to dismissal of writ petition on 1.8.06, the Union of the claimant wrote another letter dated 28.9.06 Ex WW1/5 to the Management reiterating its demand for appointment of the claimant on compassionate ground and thereafter this reference was made.

13. There are two points involved in this issue. First of all, 8 whether present petition is legally maintainable. In this regard provisions of Order 9 Rule 8 and CPC have important bearing on the facts of the present case. Under Order 9 Rule 8 CPC '' where the defendant appers and plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that suit be dismissed, unless the defendant admits the claim or part thereof. According to Order 9 Rule 9 CPC, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside.

14. In the present case, it is not case of the claimant that he had moved any application for restoration of the writ petition in Hon'ble High Court. He could not have even moved such application before Hon'ble High Court inasmuch as Hon'ble High Court had specifically directed not to entertain any restoration application in view of repeated defaults. When claim of the claimant in the writ petition was that he was entitled for appointment on compassionate ground, same was dismissed, I am of the view that same remedy by way of present industrial dispute can not be availed. CPC is applicable on writ petitions also and judicial order has been passed on the writ petition which is binding on the claimant. Writ petition has been dismissed in default as also on ground of delay and latches and claim being 9 stale, writ petition had not been got restored by the claimant, therefore, as per provisions of Order 9 Rules 8 & 9 CPC, claimant is precluded from raising present dispute as present claim for the same relief is not maintainable.

15. In Pujara Bai vs Madan Gopal ( 1989) 3 SCC 443, it has been held that writ petition decided on merits, its decision would operate as res judicata and not a dismissal in limine In the present case, writ petition was not decided on merits. It was dismissed in default of non appearance. Therefore, it was not a decision on merits, therefore, dismissal of said writ petition would not operate as res-judicata in the present proceedings. However, in view of provisions of Order 9 Rule 8 & 9 CPC, the present claim of the claimant is legally barred. This issue is accordingly decided.

16. Findings on issue No 3 Issue No 3 is as per terms of reference. Terms of reference are (a) whether the demand for appointment on compassionate ground to Sh. Ishwari Prasad S/o Late Sh. Shree Ram, father a gap of more than 12 years from the date Management rejected his request is justified, and if answer to (a) above is in affirmative, ( b) whether he is entitled to appointment on compassionate ground and if yes, what directions are necessary in this respect.

17. WW--2 Ishwari Parsad, claimant in his affidavit has 10 deposed that his father Sh. Shree Ram was working with the Management. His father is deposed to have expired on 12.11.93. Death certificate of his father has been proved as Ex WW1/I . He is deposed to have made application dated 10.12.93 Ex WW2/II for appointment on compassionate ground. Vide letter Ex WW2/III, he was asked to furnish certain documents. His case is deposed to have been inquired into and he was refused job on the ground that some of his family members were already working, therefore, no job could be given to him. He is deposed to have made another representation and vide report ex WW2/V and WW2/VI, it was revealed that nobody in the family of the claimant was working on a regular job. Vide letter Ex WW2/VII, this witness was informed that job can not be given to him. It is deposed that prior to circular Ex WW2/IV dated 20.9.94, appointment on compassionate ground were used to be given to dependents of deceased employee. It is deposed that case of the claimant was also taken up By Sh. Naresh Gaur, Local MLA who had written to Sh. Madan Lal Khurana, the then Tourism Minister but again no action was taken.

18. WW--1 Sh. S.S. Upadhyay President of the Union in his affidavit has deposed that claimant himself as well as Union had made several representations for appointment on compassionate grounds but he was not given appointment on the ground that two of his brothers were already working. It is deposed that this action 11 of the Management in refusing job to the workman is illegal.

19. MW--1 Mr Joseph Mathias, Manager ( HR) in his affidavit has deposed that appointment on compassionate ground is governed by policy adopted by the Management according to which appointment on compassionate ground can not be claimed as a matter of right. It is deposed that representation of the claimant was rightly rejected inasmuch as two of his brothers were found already working as such claimant did not meet the prescribed criteria. Copy of rejection order has been proved as Ex MW1/2 Claimant is deposed to have filed a writ petition against rejection of his application for appointment on compassionate ground which was also dismissed in default. Copy of circular which disentitle the workman for appointment has been proved as Ex MW1/1.

20. It has been argued by AR for the workman that policy of the Management has been proved as Ex WW1/8 which provide that job will be provided to dependents of deceased employee and that policy has been followed. It is argued that an agreement has been arrived at between the Union and the Management which is Ex WW1/8. It is argued that according to settlement, in case of death of a serving regular employee, one of the dependents, namely , wife or son or unmarried daughter may be considered for employment on extreme compassionate grounds commensurate 12 with the qualifications, experience etc, provided that4 he/ she is otherwise eligible for employment. It is argued that Ex WW1/2 is the list of 13 persons who had been given employment on compassionate ground. It is argued that circular of 1993 Ex WW1/1 to the effect that if dependent of the deceased employee was working, job will not be given, will not affect the case of the workman since his father died in 1993. It is argued that inquiry was conducted and it was found that two brothers of the claimant were working whereas in report Ex WW2/VI it was opined that no dependent of the deceased employee was working, hence, his name was recommended for appointment.

21. On the other hand, it has been argued by AR for the Management that first of all, dispute whether rejection of claim of the claimant by the Management is justified or not, is not a matter of reference. It is argued that according to reference dispute is whether the demand for appointment on compassionate ground after a gap of more than 12 years from the date Management rejected his request is justified, therefore, issues raised by AR for the workman are not relevant. Secondly, it was sole discretion of the Management to give employment to a claimant on compassionate ground or not after taking into consideration the policy and it can not be claimed as a matter of right.

22. I have perused the reference which is specific whether 13 demand for appointment on compassionate ground to Sh. Ishwari Parsad s/o Late Sh. Shree Ram, after a gap of more than 12 years from the date Management rejected his request is justified. It is not case of the claimant that rejection of his application was not communicated to him or that he did not have any notice of the rejection. In the report Ex WW2/VI, it was found that two brothers of the claimant, namely, Om Parkash and Rajinder Kumar were the earning members of the family of deceased employee and had been working in private establishments. It was also reported that Om Parkash sells Bananas and that Rajinder Kumar is working as daily wager. It was also reported that their ration card in the name of their mother Smt Shanti Devi in which Smt Shanti Devi, Mr Om Parkash, Mr Rajinder Mr Ishwari Prasad, Smt Raj Kumar wife of Om Parkash and Smt Nita W/o Rajender have been shown to be family members. When claimant was member of a joint family headed by his mother Smt Shanti Devi in which two male members had been earning and were supporting the family, in my opinion, it can not be said that rejection of application of the claimant was on illusory or unsubstantial grounds.

23. AR for the claimant has drawn my attention to list of 13 persons who got job on compassionate grounds. Same has been proved as Ex WW1/II. In my opinion, same is not relevant inasmuch as rights are to be determined with reference to rules 14 and regulations, policy, agreement and like. Under the agreement Ex WW1/VIII, if there is working member in the family of deceased employee, employment on compassionate ground can not be given. According to report Ex WW2/VI, two brothers of the claimant had been working. When two of brothers of the claimant had been working, the list Ex WW1/II has no relevance on the basis of agreement relied upon by the workman.

24. Appointment on compassionate ground can not be claimed as a matter of right. It is only a social security measure under which Management can give employment to one of the dependents of deceased employee in case family is in immediate financial or economic distress and if immediate assistance is not given, the whole family has a danger of being rendered destitute. It is not based on the principles of substitution of deceased employee by the dependent in case of death of an employee. If such a construction is placed upon, these provisions, in my view, that would tantamount to conferring right of succession to the post held by father in favour of a son.

25. AR for the workman has placed reliance on Ex WW1/8 which is memorandum of settlement between the Union and the Management. Para 19 of the the same provide that in case of death of a serving regular employee, one of the dependents, namely , wife or son or unmarried daughter may be considered for 15 employment on extreme compassionate grounds commensurate with the qualifications, experience etc, provided that he/ she is otherwise eligible for employment and does not suffer from any infirmity on grounds of age, health, character verification etc. subject to availability of suitable vacant post provided that there is no other earning member in the family. This agreement, according to the claimant, is still in force. If it is so, then this agreement in itself makes provisions that employment on compassionate ground to one of the dependents of the deceased employee can be provided only when there is no other earning member in the family. According to report Ex WW2/VI, two brothers of the claimant have been working and it is a joint family living together, therefore, family of the deceased employee is not in urgent financial distress. Therefore, it can not be said that application of the claimant for appointment on compassionate ground was wrongly rejected.

26. In General Manager, State Bank of India vs Anju Jain 2008(4) S.C.T 305, Birbati Rani vs State Bank of Patiala, 2008(3) S.C.T.834, C. Rajagopal vs Superintending Engineer, Madurai 2008(4) S.C.T 178 and Steel Authority of India Ltd vs Madhusudan Das & Ors 2009 (1) S.C.T 449, it has been held by their lordships of Hon'ble Supreme court that appointment on compassionate ground is not a matter of right. It is only an 16 enabling measure to support family of the deceased employee under distress or penury to save its member from destitution. In Ganesh Goel vs Secretary DDA ( supra), it was held that only right which exists in favour of family members of the deceased is a right to be considered for compassionate employment and not a right to be appointed as a substitute for deceased. In view of above discussion and authorities referred to above, I come to the conclusion that claimant is not entitled to any relief. This issue is accordingly decided.

Announced in the open court
on 14.07.09                         (BABU LAL)
                        Presiding Officer, Industrial Tribunal-II
                             Karkardooma Courts, Delhi.