Delhi District Court
I.D. No. 39/17 vs The on 16 September, 2022
IN THE COURT OF SH. JITENDRA KUMAR MISHRA: PRESIDING
OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE AVENUE DISTRICT
COURTS , NEW DELHI.
Ref. No.: F.79/Lab/CD/2017/377
Dated : 20.02.2017
I.D. No. 39/17
Workman
Om Prakash
S/o Sh. Chandan Singh
R/o Village & PO Daulat Pur,
New Delhi-110043
Vs.
The Management of
M/s Delhi Transport Corporation (DTC)
Through its Chairman cum Managing Director
I. P. Estate
New Delhi
Date of institution : 14.03.2017
Date of reserving award : 12.09.2022
Date of award : 16.09.2022
(About 5 years old case)
AWARD
1.Labour Department, Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Tribunal vide notification No. F.79/Lab/CD/2017/377 Dated : 20.02.2017 with following terms of the reference:-:-
ID no. 39/17Om Prakash Vs. DTC page no. 1 /12 "Whether the demand of the workman Sh.
Om Prakash S/o Sh. Chandan Singh aged 61 years for incentives for promoting the small family norms against the sterilization operated upon his wife as per office order no. 22 vide no. Adm-1(102)/81 dated 18.07.1981 issued by the management during the intervening is legal and justified?"
"Whether the applicant Sh. Om Prakash S/o Sh. Chandan Singh aged 61 years is also entitled to difference of pension along with proportionate DA and its interest, if so, what directions are necessary this respect."
2. Statement of claim has been filed by the claimant/workman, wherein it is alleged:
a) Workman was appointed in the management as a driver on 14.12.1984 and retired on 30.06.2014 having completed 29 years, six months and 16 days of service;
b) During the course of service, the management illegally terminated services of the workman on 12.06.1987. The termination was challenged in the Labour Court and Labour Court vide its award dated 14.08.1996 held the termination illegal and unjustified and directed the management to re-instate the workman with full back wages and continuity of service.
c) Management did not comply the order of the Labour Court and challenged the said award in the Hon'ble High Court of Delhi.
d) In the Hon'ble High Court, the management settled the dispute by re-instating him with some conditions. Workman was taken back in ID no. 39/17 Om Prakash Vs. DTC page no. 2 /12 service on 25.05.2003 and thereafter, retired from the services of the Corporation on 30.06.2014 at the superannuation of 60 years.
e) During the period of termination, an office order No. 22 vide No. Admn-1(201)/81 dated 18.07.1881 was issued by introducing incentives among the employees for promoting the small family norms. His wife got herself sterilized on 14.06.1993 from AIIMS of OPD card.
f) Workman could not claim for the said incentive for promoting the small family norms against sterilization because of out of service and after re-joining the duty, he made submissions to his unit officer/DM, but, the DM refused to give the benefit of the said increment/increments.
g) Workman has also appealed to the worthy CMD and have also appeared before the grievance committee for releasing his rights, but was not heard in the interest of justice.
h) Sh. Jagdish Tyagi, Advocate has also issued a legal notice on his behalf to release the pyament of sterilization incentive and pension @ 50% of back wages along with proportionate DA with the clarification that in case the entitled payment is not released then workman would be constrained to take appropriate legal action against the management and the concerned officer & DMGHD in the court of law, but the management paid no heed neither to his submissions nor to legal notice.
i) Workman has also approached to the conciliation officer, Central District to resolve the dispute, but, due to adamant attitude of the management the matter could not be settled.
ID no. 39/17 Om Prakash Vs. DTC page no. 3 /12
j) Workman is a pension opted employee and getting pension from
the department, the management is not paying the pension under the provisions of pension Rules.
k) Vide letter no. 38/37/08-P&PW(A), Government of India, Ministry of Personnel, PG and Pensions, Department of Pension and Pensioners' Welfare circulated an office memorandum dated 30.07.2015. The matter was challenged before the CAT, Hon'ble High Court as well as before the Hon'ble Supreme Court, but the same was dismissed and accordingly in compliance with the above judicial pronouncements, it has been decided that the pension/family pensioners may be revised in accordance with this Department's O No. 38/37/08- P&PW(A) dated 28.1.2013 with effect from 01.01.2006 instead of 24.09.2012 .
l) DTC has adopted the Central Civil Services Rules 2008 in DTC w.e.f 1.1.2006 vide letter no. PLD-V(VIth PC)/08/2824 dated 23.09.2008 and no question arises not to release the payment of pension @ 50% of the basic pay plus its proportionate DA, because he was entitled.
m) Hon'ble Supreme Court has also held that the executive instructions are not having statutory character and therefore, cannot be termed as law within the meaning of Article 300A.
n) Both the circulars ie. office order No. ADMI-1(102)/81 dated 18.07.81 regarding introduction of incentives among the employees for promoting the small family norms as well as Pension Rules are based upon the policies laid down by the Government of India, hence, needs no adjudication.
ID no. 39/17Om Prakash Vs. DTC page no. 4 /12 It is prayed in the Statement of Claim to pay monthly pension 50% of the average emolument for pension Rs.13640/- which comes to the tune of Rs.6820/- instead of Rs.4263 and to pay its arrears Rs. 61358/- from the date of retirement and further along with proportionate DA and its interest 18% for which he is entitled in accordance with the provisions of VIth pay Commission, adopted by DTC management in toto vide its office order No. PLD-V(VIth PC) / 08/2824 dated 23.09.2008.
3. In the written statement filed on behalf of management, it is alleged that workman has no cause of action to file the present claim; workman is not entitled to any relief as per agreement executed between the workman and the management; workman is not entitled to the amount of sterilization of his wife as he was out of service at that time; workman has not come with clean hands before this Court as he concealed the material facts from this Court that he has filed a petition for seeking the same relief from the Central Administrative Tribunal and the said matter is already dismissed by the CAT; workman is not entitled to any relief as the workman is drawing the pension as per fixation and revised pay scale.
All other averments made in the statement of claim have been denied and dismissal of the same has been prayed for.
4. Rejoinder has been filed by workman, wherein all averments made in the written statement have been denied and the contentions made in the statement of claim have been reiterated and affirmed.
ID no. 39/17Om Prakash Vs. DTC page no. 5 /12
5. On the basis of pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 06.03.2019 :-
"(i) Whether the claim of the workman has been properly espoused by the Union? OPW
(ii) As per the terms of reference. OPW
(iii) Relief."
6. To prove his case, workman Sh. Om Prakash examined himself as WW-1 and tendered his evidence by way of affidavit Ex.WW1/A, in which he has affirmed the contents of his statement of claim. He has also relied upon documents Ex.WW1/1 to Ex. WW1/9, which are:-
i. Ex WW1/1 is the copy of settlement; ii. Ex WW1/2 is the copy of legal demand notice; iii. Ex WW1/3(OSR) is copy of office order no. 22 dated 18.07.1981; iv. Ex WW1/4(OSR) is copy of CCS Pension Rules; v. Ex WW1/5(OSR) is copy of pension payment order; vi. Ex WW1/6(OSR) is the letter No. PLD-V(VIth PC) 08/2824 dated 23.09.2008;
vii. Ex WW1/7(OSR) is the copy of letter requesting for providing the sterilization w.e.f 04.06.1993 to 30.6.2014; viii.Ex. WW1/8 is the application dated 27.08.2015 for personal appearance for redressal of grievances arising out of the malpractice exercised by the unit officer concerned. ix. Ex. WW1/9 is the espousal;
x. WW1/Mark1 is the office memorandum No. 38/37/08-P&PW(A) dated 30.07.2015 xi. WW1/Mark 2(colly) are the copies of prescription receipts of wife of workman.
xii. WW1/Mark 3 is the copy of application filed before conciliating authority, Labour Department, Employment exchange building, Pusa Complex, New Delhi ID no. 39/17 Om Prakash Vs. DTC page no. 6 /12 WW-1 was cross-examined by ld. AR for management and thereafter, vide separate statement on 26.11.2021, workman evidence was closed.
7. Thereafter, management to prove its case has examined Sh Indraj Mahawar as MW-1. He has tendered his affidavit in evidence Ex. MW-1/A and relied upon the documents i.e. Ex. MW-1/1 to Ex. MW1/3. Ex. MW1/1 is the copy of letter dated 16.04.2013, Ex. MW- 1/2 is the pension calculation sheet and copy of letter dated 01.10.2015 is Ex. MW-1/3. In his affidavit, MW-1 has deposed that services of the workman were terminated on 12.06.1987. The Labour Court passed award against the management on 14.08.1996. Management has challenged the same before the Hon'ble High Court of Delhi. The matter was settled out of the court and the workman was re-instated in service of the management vide order dated 23.05.2003 on terms and conditions of the settlement. The workman joined the service on 25.05.2003. It is further deposed by MW-1 that as per terms and conditions of the settlement, the period of absence from duty from the date of termination till he reports for duty will be treated as leave without pay and without any other service/monetary benefits. It is further deposed that the workman would not be entitled to any monetary benefits or payment of any pay, allowance for the intervening period i.e. from the date of termination to the date he joins.
This witness was cross-examined by ld. AR for workman. Thereafter, management closed management evidence vide separate statement of ld. AR for management dated 27.05.2022.
ID no. 39/17Om Prakash Vs. DTC page no. 7 /12
8. Final arguments have been heard at length as advanced by Ld. ARs of both sides. Written arguments have already been filed by ld. AR for workman submitting that as the length of service for purpose of computing the pension has been taken from the date of re- employment, it is totally illegal, arbitrary and mala fide. Seniority of the workman has to be taken from 14.12.1984. Thus, length of service of workman has to be computed from date of his employment i.e. 14.12.1984. Further, the relief of incentive for promoting the small family norms against sterilization has not been covered within the exemption and moreover his service is taken to be in continuity and also the said scheme of sterilization was a social welfare measure, there is no provision under which the management can restrain the said benefit.
9. I have gone through the entire record of the case including pleadings of the parties, evidence led and documents proved during evidence.
10. My issue wise findings are as:
"(i) Whether the claim of the workman has been properly espoused by the Union? OPW The onus to prove this issue was on the workman. Workman has relied copy of espousal which is Ex. WW1/9. Author of Ex.
WW1/9 does not appear before this Tribunal to prove execution of this document. Moreover, it is not the case of WW-1 that Ex. WW1/9 was ID no. 39/17 Om Prakash Vs. DTC page no. 8 /12 executed in his presence.
Moreover, it is not deposed by WW-1 in Ex. WW1/A that Ex. WW1/9 was issued in his presence. Moreover, it is also not disclosed how WW-1 got in hand Ex. WW1/9 to be produced before this Tribunal; who has supplied Ex. WW-1/9 to WW-1, has not been disclosed by WW-1 in his testimony. It is not deposed by WW-1 that when this document was prepared who were present at the time of preparation of that document and after preparation of that document, to whom it is handed over to keep it in custody. Hence, document Ex. WW1/9 is not a trustworthy document inasmuch as author of this document has not appeared, nor, his signatures has been identified by the workman. In his affidavit, WW-1 has not stated that when he approached Delhi Parivahan Majdoor Sangh for redressal of his grievance. When workman became member of that Delhi Parivahan Majdoor Sangh, not disclosed. No subscription receipt has been filed by the workman to prove that he is the member of Delhi Parivahan Majdoor Sangh.
Keeping in view the above observations, this Tribunal is of the considered view that workman is not able to discharge the onus to prove issue no. 1. Hence, issue no. 1 is answered against the workman.
11. Issue no. 2 As per terms of reference.
In para no. 6 of Ex. WW-1/A it is deposed by WW-1 that he claimed increments under office order No. 22 vide No. Adml-I/ (201)/81 dated 18.07.1981 already issued by management ID no. 39/17 Om Prakash Vs. DTC page no. 9 /12 introducing incentives among the employees for promoting the small family norms, but the management denied the aforesaid benefits taking pretence that he was out of service when his wife got sterilization. There is a photocopy of a letter dated 01.12.2014 wherein request has been made for providing the sterilization benefits w.e.f 04.06.1993 to 30.06.2014. On the left side, there is stamp, date and signatures bearing date 01.12.2014. Therefore, on this date, he has claimed for sterilization increment. Therefore, he raised his claim for this benefit only after his retirement. Prior to that, it is not the case that fact of sterilization operation was informed to the department by the workman through any written communication.
Futher it is observed that claim raised by workman in his statement of claim, is not in accordance with the reference order issued by the labour department. Relief claimed in the statement of claim is regarding monthly pension 50% of the average emolument for pension and to pay arrears from the date of retirement along with proportionate DA. However, terms of reference are not as such as in first part, incentive for promoting the small family norms against the sterilization operation upon his wife has been made and in the next part of terms of reference, claim for difference of pension along with proportionate DA and its interest has been made.
Moreover, WW-1 in his cross-examination has specifically deposed that operation of his wife was done on 14.06.1993 and he rejoined the duty on 25.05.2003. Hence, what stopped the workman in filing the claim from 2003 till his retirement i.e. 30.06.2014 not explained.
As per the case of workman, he retired on 30.06.2014 and ID no. 39/17 Om Prakash Vs. DTC page no. 10 /12 informed the management about fact of sterilization on 01.12.2014 i.e. after retirement. He has not claimed for increment at an appropriate time during his service tenure. Therefore, this Tribunal is of the considered view that the claim of the claimant has already become stale when he had presented his claim. Workman has not been able to explain what stopped him to inform the department immediately when sterilization operation was carried out to claim the increment. The delay has defeated his claim and therefore, it is not the case of the workman that despite demand raised in writing or information given to the department in writing, the management had denied or did not act upon such written demand of the workman to grant him benefits arising out of the sterilization operation.
Therefore, this Tribunal is of the considered view that the claimant has not raised the dispute within reasonable time. For what reasons, the claimant could not raise the dispute within reasonable time, has not been explained.
Here, in this case no step has been taken by the claimant to apply for incentives against the sterilization operation for 11 long years. Therefore, the claim of the claimant is bad due to latches and delay as the same has not been raised within reasonable time. As the claim of the claimant is barred by latches and delay, hence, reference is also answered against the claimant.
12. Relief.
In view of findings of issues no. 1 and 2, claimant is not entitled to any relief in view of the above findings.
ID no. 39/17Om Prakash Vs. DTC page no. 11 /12
13. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in open Tribunal on this 16th day of September, 2022 Digitally signed JITENDRA by JITENDRA KUMAR KUMAR MISHRA Date: 2022.09.16 MISHRA 04:16:32 +0530 (Jitendra Kumar Mishra) POIT-I/Rouse Avenue Courts, New Delhi ID no. 39/17 Om Prakash Vs. DTC page no. 12 /12