Delhi District Court
The vs The on 30 January, 2013
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No. 288/10
The Workman
Sh. Anil Kumar, S/o Late Sh. Ram Karan,
c/o Municipal Employees Union,
Aggarwal Bhawan, GT Road,
Tis Hazari, Dehi- 110054
Vs.
The Management
M/s Delhi Jal Board (D.J.B.),
Varunalaya Building, Phase II, Karol Bagh,
New Delhi-110005
Date of institution 07.04.2010
Date of reserving Award: 17.01.2013
Date of award 30.01.2013
Ref : F.24 (146)/09/Lab./CD/466 dated 11.03.2010
AWARD
1.Claimant 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 following terms of I.D. No. 288/10 Page 1 of 11 reference:-
" Whether the demand of Sh. Anil Kumar S/o Late Sh. Ram Karan (Deceased Workman) for appointment on compassionate grounds on any suitable post on regular basis in proper pay scale & allowances from the date of the death of his father is justified; and if so, to what directions are necessary in this respect?"
2. Statement of claim has been filed on behalf of the claimant Sh.
Anil Kumar, wherein it is stated that workman Late Sh. Ram Karan, father of the claimant, was a permanent and regular employee of the management and was working as Fitter, having unblemished record of service; that said workman Sh. Ram Karan expired on 31.01.2004 and after his death, Sh. Anil Kumar, the son of the deceased made a representation to the management vide diary no. 831; that in pursuance of his aforesaid representation, he was interviewed on 17.08.2005 but subsequently, he was told verbally that he was not found fit for appointment on compassionate ground without assigning any reason thereof; that he later on, he moved another application for appointment on compassionate but he was not given appointment on compassionate ground; that the family of the deceased was completely dependent on him I.D. No. 288/10 Page 2 of 11 and as per various judgments of Hon'ble High Court and Hon'ble Supreme Court, Sh. Anil Kumar is eligible and entitled for appointment on compassionate ground on any suitable post, as he is totally unemployed; that denial of appointment of the workman on compassionate ground is totally illegal; that it is one of the service conditions of the workman that in case of death of an employee during employment, one dependent of the deceased has to be given employment on compassionate ground; that in the similar circumstances the management has given employment on compassionate ground to other employees, but has denied the same to present claimant. It is prayed that an award be passed in favour of the claimant holding him entitled for appointment on compassionate ground from the date of death of his father alongwith cost of litigation.
3. No written statement has been filed for management despite sufficient opportunities given for the purpose. Accordingly, right of the management to file written statement was closed.
4. On the basis of pleading of the claimant, following issue was framed on 06.10.10 :-
1. As per terms of reference.
5. Claimant examined himself as WW 1. In his examination-in- I.D. No. 288/10 Page 3 of 11
chief through affidavit, he has reiterated the contents of statement of claim.
6. In his cross-examination, he has deposed that he is married having two children and now, he is residing at his village in his own house. He has deposed that they are two sisters and one brother and all are married. He has admitted that his mother is getting pension of Rs.6021/- pm. He has further admitted that his mother got Rs.2,41,000/- from the management after death of his father. He has denied the suggestion that claim filed by him is time barred. He has denied the suggestion that he is maintaining himself and in future also will maintain himself.
7. Workman has also examined WW 2 Sh. Surender Bhardwaj, General Secretary of the Union. WW 2 has tendered his affidavit relying upon document i.e. copy of resolution passed by the Union, espousing the cause of workman, as Ex. WW1/3.
8. In his cross-examination, WW 2 has deposed that meeting of the union concerning the workman was held on 06.02.2009. It is denied that no such meeting was held.
9. Management has examined MW 1 Sh. Amit Kumar Jain, its Asst.
Commissioner and has relied upon document Ex. MW 1/1. In his affidavit, he has deposed the management has engaged the workman I.D. No. 288/10 Page 4 of 11 on muster roll on compassionate ground as per office order No. 64 (Min) dated 17.02.2012 as per the policy of Delhi Jal Board, hence the claim petition of the workman has become infructuous; that the name of workman is mentioned at S. No. 17 showing appointed him as PCAMR on Muster Roll.
10. In cross-examination, he has admitted the suggestion for workman that workman Sh. Anil Kumar has been given employment on compassionate ground by the management w.e.f. 17.2.12. He has voluntarily stated that he was given appointment on muster roll at the post of Peon-cum-Asst. Meter Reader, on recommendation of screening committee of the management. It is admitted that the father of the workman was employed with the management on regular and permanent basis as Fitter till he died on 31.01.2004. MW 1 was not aware, if the workman applied for appointment on compassionate ground in 2004 itself and was approaching the authorities time and again for his appointment on compassionate ground. It is deposed that he cannot give any reason for delay of appointment from 2004 to 2012. He has voluntarily stated that only competent authority can explain the same. He has deposed that nature of work and working hours of the workman Sh. Anil Kumar and his counter parts, who are treated as regular and permanent PCAMR, are I.D. No. 288/10 Page 5 of 11 same and identical. It is admitted that the workman is being paid salary of muster roll employee which is less than the salary of regular employee. It is denied that the workman is entitled for regular and permanent post of Peon-cum-Asst. Meter Reader from the date he submitted his application for appointment on compassionate ground or since the date his father expired or within a reasonable period thereof.
11. I have heard arguments from Sh. Rajiv Agarwal, Ld. Counsel/AR for workman and Sh. S.P. Saini, Ld. Counsel/AR for the management. I have perused the entire record. My findings on the issue is as under:-
12. Findings on Issue no.1 Issue no. 1 is "As per terms of reference". Terms of reference are "Whether the demand of Sh. Anil Kumar S/o Late Sh. Ram Karan (Deceased Workman) for appointment on compassionate grounds on any suitable post on regular basis in proper pay scale & allowances from the date of the death of his father is justified; and if so, to what directions are necessary in this respect?"
13. The claimant has deposed in his affidavit tendered in his examination-in-chief that his father late Sh. Ram Karan was a permanent and regular employee of the management and had expired on 31.01.2004; that after the death of his father he submitted a representation to the I.D. No. 288/10 Page 6 of 11 management and in pursuance of the said representation, he (claimant) was interviewed on 17.08.2005 but subsequently, he was told verbally that he was not found fit for appointment on compassionate grounds. Further, claimant has deposed that a demand notice was sent to the management by registered A.D. post vide communication dated 13.02.2009 but the management did not respond it.
14. Perusal of records shows that the father of claimant expired on 31.01.2004 and reference order has been issued on 11.03.2010 i.e. more than 06 years after death of workman late Sh. Ram Karan. Moreover, as per the statement of claim, claimant was interviewed on 17.08.2005 and he was informed that he was not found fit for employment on compassionate ground by the management. Still, alleged legal demand notice dated 13.02.2009 i.e. Ex. WW 1/1 was sent through registered post only on 20.02.2009 as per postal receipt Ex. WW 1/2 . Thus, there is about more than 3 ½ years inordinate and unexplained delay in raising of the industrial dispute.
15. 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 I.D. No. 288/10 Page 7 of 11 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 held that inordinate and unexplained delay in raising industrial dispute would defeat the rights of the workman and would disentitle him to any relief.
16. Further, in U.P State Road Transport Corporation Vs. Babu Ram (2006) 5 SCC 433, the Hon'ble Supreme Court has held that workman has not placed any material to show that he had raised dispute within a reasonable time, and/or that he was not responsible for delayed decision, if any, in the conciliation proceedings. It was for him to show that the dispute was raised within a reasonable time and that he was not responsible for any delay. Relying upon above said authority, our own Hon'ble High Court (Coram: Her Lordship Hon'ble Ms. Justice Mukta Gupta) in Krishan Kumar Vs. Delhi Jal Board, Writ Petition (Civil) I.D. No. 288/10 Page 8 of 11 No 669 of 2012 , while dismissing the writ petition, observed as follows:-
"The petitioner has failed to give any reasons for delay in agitating his claim after 1998 and for raising the industrial dispute in the year 2008 before the Industrial Tribunal after a lapse of almost 8 years when the penalty of withholding his promotion had attained finality. Clearly, the workman cannot agitate a stale claim as and when he desires. The petitioner has not been able to show sufficient cause in agitating the claim at a highly belated stage or that there was a continuous cause of action".
17. In view of above proposition of law and also in view of inordinate & unexplained delay of raising the dispute, case of claimant is not maintainable and is barred by delay and latches.
18. Further more, In Ganesh Goel vs Secretary Delhi Development Authority 2007 ( 114) FLR 1011, it had been held a person seeking compassionate appointment has only a right to be considered within the framework of the provisions governing such appointments from time to time. It was also held that such a person has no indefeasable right to be appointed.
I.D. No. 288/10 Page 9 of 11
Further, 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 enabling measure to support family of the deceased employee under distress or penury to save its member from destitution.
19. As held above by Hon'ble Supreme Court, appointment on compassionate ground cannot be claimed as a matter of right. It is only an enabling measure to support family of the deceased employee under distress or penury to save its member from destitution. Claimant has admitted in his cross-examination that that he is living in his own house. It is further admitted by him that he and his two sisters are married. He has also admitted in his cross-examination that his mother has received a sum of Rs. 2,41,000/- from the management after death of his father and is also getting pension of Rs. 6,021/- per month. Therefore, no distress or destitution has been shown by the claimant, for which he needs appointment on compassionate ground to support family of the deceased. I.D. No. 288/10 Page 10 of 11 Moreover, at the time of appointment on compassionate ground, it is the comparative study of the applicants at particular time, which is considered and the case of applicant cannot be considered in isolation. It is not the case of claimant that he deserved more than other applicants when his case was considered for appointment on compassionate ground. However, admittedly, the management has engaged the claimant on muster roll on compassionate ground w.e.f. 17.02.2012, as per the its office order No. 64 (Min) dated 17.02.2012 Ex. MW 1/1 as per the policy of Delhi Jal Board.
20. In view of above discussion, it is held that the demand of Sh. Anil Kumar S/o Late Sh. Ram Karan (deceased workman) for appointment on compassionate grounds on any suitable post on regular basis in proper pay scale & allowances, from the date of death of his father is not justified. The issue is decided in above terms. Reference is answered accordingly.
21. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open court
on 30.01.2013 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
I.D. No. 288/10 Page 11 of 11