Delhi District Court
Smt. Prem Mahendru vs Jamia Hamdard (Hamdard University) on 1 December, 2011
IN THE COURT OF SH SUNIL K. AGGARWAL: ADDL. DISTRICT
JUDGE (CENTRAL) 10: DELHI
RCA No. 30/2011
Smt. Prem Mahendru,
Wd/o Sh. P.C. Mahendru.
R/o 224, Hauz Rani,
Malviya Nagar, New Delhi. ....Appellant
VERSUS
1. Jamia Hamdard (Hamdard University)
Hamdard Nagar, New Delhi62.
Through its Vice Chancellor,
2. The Registrar,
Jamia Hamdard (Hamdard University)
3. The Medical Superintendent,
Majeedia Hospital,
Jamia Hamdard (Hamdard University)
Hamdard Nagar, New Delhi62. ....Respondents
Appeal presented on 11.08.2010 J U D G M E N T.
1. Sh. P. C. Mahendru had filed a suit for declaration and injunction on 27.03.1993 in respect of his employment and service conditions. During pendency thereof he unfortunately died on 07.11.2002 whereafter the suit RCA No. 30 of 2011 was continued by his legal representatives. On culmination of the suit, present appeal has been preferred by his widow. Hereinafter the original plaintiff and the present appellant will be referred to as 'plaintiff' and the respondents arrayed in appeal as 'defendants'.
2. Relevant facts for the purposes of appeal, in brief, are that on retirement from the post of Havildar from Army Medical Corps on 30.09.1982, plaintiff had applied for and was selected to the post of 'Male Nurse' w. e. f. 28.09.1987 vide appointment letter dated 11.10.1987 on probation of six months extendable up to one year, on a consolidated salary of Rs. 1,400/ per month. It further provided that on completion of probation period the plaintiff was eligible for confirmation but unless and until confirmed in writing by specific order, he will be deemed to continue on probation notwithstanding expiry of the probation period. There was also a clause reserving the right with management to extend the period of probation of the plaintiff by another period as deemed fit. It was contended that the plaintiff was legally entitled to receive salary in the pay scale of 1100351450EB401850 as was being drawn by regular employees of the defendants. Plaintiff had worked to the satisfaction of the defendant therefore, his salary was raised to Rs. 1,500/ per month w. e. f. 01.02.1989. Defendant no. 1 was a 'deemed University' under University Grants Commission Act and is therefore, governed by the Rules, Regulations, RCA No. 30 of 2011 Circulars and Directions of Department of Education, Ministry of Human Resources and Development, Government of India. Majeedia Hospital being run by defendant no. 1 as its faculty is also bound by the Rules applicable to the University. The plaintiff had applied for fixation of his pay in the regular scale on 10.08.1990. On receiving no response, reminder dated 30.04.1992 was given. Vide office letter no. 86 dated 20.11.1989 the staff working in Majeedia Hospital on 15.11.1989 were treated as regular employees of defendant no. 1 with retirement age being 60 years. Although juniors to the plaintiff in service were granted regular payscales and allowances but plaintiff continued to receive consolidated salary in gross violation of the principle of 'equal pay for equal work' under Equal Remuneration Act and further the discrimination by defendants was in violation of Articles 14 & 16 of the Constitution of India. The plaintiff was also denied the bonus declared by the government for the year 198990 and was paid only part bonus for the subsequent year.
3. No letter/order for the extending period of probation was issued by the defendants to the plaintiff who claimed deemed confirmation to the post of Male Nurse on the expiry of six months or at the most one year, the maximum period prescribed in the appointment letter. Instead of being regularized on the post and granted applicable payscale and allowances defendant no. 2 issued office order no. 39 dated 06.02.1993 describing RCA No. 30 of 2011 plaintiff to be as ad hoc employee up to 31.03.1993. The grievance of plaintiff was that the said office order was illegal as he was never engaged as ad hoc employee and more prominently the order of deemed termination of plaintiff could not have been passed by any authority subordinate to the appointing authority, who in his case was defendant no. 3. Suit therefore, for declaring office order dated 06.02.1993 as illegal and void and that he is confirmed to the post of Male Nurse w. e. f. 28.02.1988/28.09.1988 and as such is legally entitled to continue on the said post till retirement and be paid pay and allowances and other benefits including bonus at par with other regular employees of defendant w. e. f. 28.09.1987 was filed. Further decree of injunction for directing defendants to pay all the arrears of pay and allowances in the regular payscale w. e. f. 28.09.1987 along with consequential benefits was prayed for. Defendants were also sought to be restrained from preventing the plaintiff from continuing in his service on the post of Male Nurse from 01.04.1993.
4. Ld. Trial court had passed an order of interim injunction on 24.04.1993 thereby restraining the defendants from giving effect to Office order no. 39 dated 06.02.1993 till disposal of the suit. During continuance thereof, on being retired on attaining the age of 60 years, plaintiff had filed an application under Order 39 Rule 2A CPC for initiating contempt proceedings against the defendants. The application was dismissed by Ld. RCA No. 30 of 2011 Trial Court.
5. The defendants had opposed the suit by challenging the locusstandi of plaintiff to maintain it. It was reasserted that plaintiff being an ad hoc employee can only invoke the Jurisdiction under the Industrial Disputes Act, 1947 instead of approaching the Civil Court. It was claimed that the status of plaintiff was entirely different from the other employees of their establishment. The entitlement of plaintiff to any of the reliefs claimed in the suit was denied.
6. The defendants were proceeded exparte in the suit on 20.01.2004. The suit was decided by Ld. Trial Court thereby passing judgment and decree in favour of plaintiff on 01.11.2004. On the defendant filing an application under Order 9 Rule 13 CPC, however the said decree was set aside on 06.04.2005. The suit again came to be decided on 03.06.2010 whereby it was partly decreed in favour of plaintiff in as much as the office order no. 39 dated 06.02.1993 was declared null and void but rest of the reliefs were declined to him.
7. This judgment and decree has been challenged in the present appeal on the ground that the Ld. Trial Court has failed to follow the CCS Rules regarding continuation of probation and confirmation of employees. As per RCA No. 30 of 2011 Rule 9 thereof the assessment reports of the employees for the extended period of probation should be completed in time and placed before specific DPC and further the employee should be informed about the period of extension of his probation. It is alleged that the trial court did not appreciate that no letter for extension of probation was given to the plaintiff. Even an employee working on probation could not be terminated without any just cause or afforded an opportunity of being heard. Moreover the impugned office order dated 06.02.1993 was not issued by the competent authority. Having not been issued by the defendant no. 3 it was not binding on the plaintiff. No showcause notice had been served on him prior to the issuance of impugned office order nor any opportunity of hearing was provided. It was, therefore issued in contravention of principles of natural justice. Pointing to the para 28 of impugned judgment it is averred that the conclusion therein are contradictory and that the trial court did not take into account that a probationer can never be treated as an ad hoc employee. The word 'selected' used in the appointment letter of plaintiff indicates that the employer had verified the qualifications and technical proficiency of the plaintiff. The fact that principle of 'equal pay for equal work' to be given effect in the suit did not weigh with ld. trial court therefore the impugned judgment and decree are liable to be setaside.
8. Written synopsis have been filed on behalf of parties. I have carefully RCA No. 30 of 2011 gone through the record. The plaintiff has placed reliance upon the judgment in Chief General Manager, State Bank of India Vs. Bijoy Kumar Mishra, 1998 (79) FLR 30 holding that deemed confirmation can be inferred from the employer's conduct only when it follows from the positive act of the employer permitting the employee to continue work on the post even after completion of maximum period of probation permitted under the Service Rules. Further in Tara Singh Vs. State of Punjab, 136 (20041) PLR 418, it was laid that if no order is passed extending their probation or stating that they were not entitled to be confirmed then they stand automatically confirmed after the expiry of probation period.
9. Reliance has also been placed upon S. K. Verma Vs. State of Punjab, AIR 1979 P & H 149 (FB) wherein it was stated that the term of 'ad hoc employee' is conveniently used for a wholly temporary employee engaged either for a particular period or for a particular purpose and one whose service can be terminated with the maximum of ease. As against the permanent, quasipermanent temporary employees, the ad hoc one appears at the lowest level implying that he had been engaged causally, or for a stop gap arrangement for a short duration or fleeting purposes.
10. The defendant on the other hand has cited about 70 judgments in the synopsis in support of the contention that the suit could not have been RCA No. 30 of 2011 entertained by the trial court in the first place as the dispute between the parties is impliedly excluded from the term 'suits of civil nature'. The plaintiff himself has given its indication by filing his claim under section 33C(2) of Industrial Disputes Act bearing LAC no. 03/2004 decided on 18.07.2005 by Ms. Deepa Sharma, then Ld. Presiding Officer, Labour Court, Karkardooma, Delhi. It is also contended that the legal questions can be raised at any stage of the suit even when there are no pleadings to that effect. Moreover, Civil Court has no power to reinstate an employee but can only grant damages which have not been demanded in this case. Specific reference to the judgments in RSRTC Vs. Bal Mukund Bairwa, II(2009) SLT 98 and RSRTC Vs. Deen Dayal Sharma, AIR 2010 SC 2662 has been made in this context.
11. Before the Ld. Trial court only the plaintiff had been was examined as PW 1 who had proved certain documents. Defendant had chosen not to examine any witnesses. Nine issues were framed in the matter while the plea of plaintiff that he had not been engaged as an ad hoc employee was accepted but his claim for deemed confirmation was declined likewise his entitlement to get regular payscale was decided against him. The issue of entitlement of plaintiff to continue in service till attaining the age of 60 years was rendered infructuous as the plaintiff in fact continued to serve till that age pursuant to an interim order of the court. Issues of locusstandi of RCA No. 30 of 2011 plaintiff and that he had not approached the court with clean hands were decided against the defendant. The question whether defendant no. 1 did not fall within purview of Article 12 of Constitution of India was held to have no bearing in the suit. Finally the plaintiff was held entitled to relief only in respect of office order no. 39 dated 06.02.1993.
12. At the outset I would concur with the plaintiff that refernce to 'plaintiff' and 'defendant' in the last line of para 28 of impugned judgment require to be interchanged to be in consonance with the findings on issues no. 5 and 6. Further issue no. 1 had partly been decided in favour of the plaintiff in as much as his plea of not being an ad hoc employee was accepted. It should have been so recorded in para 25 of the impugned judgment.
13. A specific issue of competence of plaintiff to file the suit against the defendant had been framed in the matter of which onus to prove was upon the defendant. It was decided against the defendant. No cross objections against the said finding have been preferred under Order 41 Rule 22 CPC by the defendant. The argument on the maintainability of the suit revolving around the competence of plaintiff to file it, cannot be heard from the defendant in the guise of it being a legal plea.
RCA No. 30 of 2011
14. Even though the averments of plaintiff in respect of office order no. 39 dated 06.02.1993 found favour with Ld. Trial court yet strangely enough grievance in its behalf is made in the grounds C, D & F.
15. Rest of the claim of plaintiff is about deemed confirmation to the post of Male Nurse w. e. f. 28.02.1988/28.09.1988 and entitlement to regular payscale etc. The appointment letter dated 11.10.1987 of plaintiff specified that he was placed on probation initially for a period of six months and extendable up to one year. The management however had right to extend it beyond that period. Additional proviso in clause 3 of said letter is to the effect that there will not be deemed confirmation unless and until given in writing even after expiry of the probation period. Ld. trial court had placed reliance upon the judgment on High Court of M.P. Vs. Satyanarayan Jhavar, (2001) 7 SCC 161 holding that where the Service Rules or letter of appointment specify period of probation with power to extend it without prescribing any maximum period and if the employee is continued beyond the prescribed or extended period he cannot be deemed to be confirmed. The judgment of CGM, State Bank of India Vs. Bijoy Kumar Mishra was also considered therein. The term pertaining to probation period in the appointment letter of plaintiff was in consonance with the Rules and Regulations applicable to the Majeedia Hospital and submitted by plaintiff along with appeal.
RCA No. 30 of 2011
16. The law of deemed confirmation is almost consistent to the above effect. It was held in State of Punjab Vs. Baldev Singh Khosla, AIR 1996 SC 2093 that there is no deemed confirmation. Mere a long period in service after expiry of probation period cannot be deemed to be confirmed. In Dayaram Dayal Vs. State of MP, 1997 (7) SCC 443, it was observed that where there is no stipulation that on expiry of maximum period of probation, the probationer will be deemed to be confirmed, he will continue on probation till the order of confirmation is passed and there will be deemed confirmation only if Service Rules so provide. In State of Maharashtra Vs. Veerappa R. Saboji, it was held that automatic confirmation cannot be claimed as of right where Rules require the satisfactory work as prerequisite or precondition for confirmation. Reference to the judgments in Commissioner of Police, Hubli Vs. R. S. More, AIR 2003 SC 1983 and Punjab National Bank Vs. Astamija Dash, AIR 2008 SC 3182 may also be usefully made in the same context.
17. Even though the appointment letter prescribed one year period of probation in one breath, it gave right to the competent authority to the extend it by another period as may be deemed fit with further rider of completion of probation period only on issuance of an order in writing, in the other. Neither therefore, the letter of appointment of plaintiff nor the RCA No. 30 of 2011 applicable Service Rules make it out to be a case of deemed confirmation. The ld. trial court therefore had come to just and fair conclusion in respect of issue no. 4.
18. Although the defendants have claimed that the appointment of plaintiff was not akin to appointment of other employees in the Majeedia Hospital against regular vacancies but both side failed to adduce evidence to the effect that plaintiff was being singled out in denying regular payscale applicable to his post. Moreover it was specified in the appointment letter itself that the plaintiff will get consolidated salary of Rs. 1,400/ per month against which he could not have raised grievance once taken into service. Last but not the least the plaintiff continued on probation till the date of filing the suit, there was therefore, no question of considering grant of regular payscale to him by the employer. The plaintiff has not examined any of his colleagues to prove the pay being drawn by them nor called any witnesses from the account section of defendants for proving the pay structure of employees coequal to the plaintiff. He thus has failed to establish denial the principle of 'equal pay for equal work' to him.
19. So far as the claim for mandatory injunction is concerned, neither the plaintiff could cogently substantiate his entitlement for stated regular pay scale nor could the relief be otherwise granted in view of the bar of section RCA No. 30 of 2011 41(h) of Specific Relief Act, 1963 as the appropriate remedy for such relief would have been a suit for recovery of damages.
20. No other point has been urged. For the aforegoing reason the appeal is hold to be with any substance. It is dismissed. Parties however are left to bear their respective costs.
Trial court record be released. Appeal file be consigned to record room.
Announced in the open court
on 1st December, 2011 (Sunil K. Aggarwal)
Addl. District Judge (Central)10
Delhi.
RCA No. 30 of 2011