Delhi District Court
I.D. No.70/13 vs The on 18 December, 2021
IN THE COURT OF SH. JITENDRA KUMAR MISHRA: PRESIDING
OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE AVENUE DISTRICT
COURTS , NEW DELHI.
Ref. No.: F-24(8)/ND/316/2011/Lab./2705
Dated : 05.02.2013
I.D. No.70/13
New ID no. 560/16
Workman
Sh. Kashmir Singh
S/o Sh. Puran Singh
posted as X Ray Technician
in Hindu Rao Hospital, Delhi,
as represented by Hospital Employees'
Union, Agarwal Bhawan, GT Road, Tis Hazari, Delhi-54
Through his legal Representatives
1.Kulwinder Kaur, wife.
2. Kuldeep Singh, son.
3. Sandeepa Singh, daughter
4. Jagrup Singh, Son Vs. The Management of Municipal Corporation of Delhi through its Commissioner, Town Hall, Chandni Chowk, Delhi-110006 Now after trifucation of erstwhile Municipal Corporation of Delhi, North Delhi Municipal Corporation, through its commissioner(North), S.P. Mukherjee Civic Centre J. L. Nehru Marg, New Delhi-110002 Date of institution : 15.02.2013 Date of reserving award : 07.12.2021 Date of award : 18.12.2021 (MORE THAN 08 YEARS OLD CASE) ID no. 560/16 Kashmir Singh Vs. NDMC page no. 1 /19 AWARD
1. Office of Deputy Labour Commissioner (North District), 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-24(8)/ND/316/2011/Lab./2705 dated 05.02.2013 with following terms of the reference:-:-
"Whether demand of workman Sh.
Kashmir Singh S/o Sh. Puran Singh for promotion on the post of Technical Assistant (X -ray) w.e.f 30.10.1997 with arrears and consequential benefits either monetary or otherwise, is justified and if so, what directions are necessary in this respect.?"
2. Statement of claim has been filed by the workman wherein it is claimed:
(a)The workman joined into the employment of the management w.e.f 20.12.1983 as X-Ray Assistant on ad-
hoc basis in Health Department. Subsequently his services were regularized on the post of X-Ray Assistant(Junior Radiographer) w.e.f 13.07.1984. The workman was again promoted as X-Ray Technician (Radiographer) w.e.f 30.10.1992;
(b)Subsequently in the year 1998 the management aforesaid ID no. 560/16 Kashmir Singh Vs. NDMC page no. 2 /19 issued an office order dated 18.2.1998 by virtue of which they considered name of certain employees including the workman concerned for promotion to the post of Technical Assistant (X-Ray) and they called for report of no currency punishment from the department concerned. Consequently in pursuance of office order, Administrative Officer of Hindu Rao Hospital sent a report dated 24.02.1998 mentioned therein that there is no currency of punishment against the workman concerned;
(c) The said report has been submitted, despite that till date the workman concerned has not been promoted to the post of Technical Assistant (X-Ray). ;
(d)Action on the part of the management regarding non promotion of services of the workman aforesaid on the post of Technical Assistant(X-Ray) is totally illegal, bad, unjust and malafide;
(e)A demand notice was also served upon the management by registered post vide communication dated 26.11.2011 which was received in their office but no reply was received and it is presumed that the demand has been rejected;
(f) Conciliation proceedings were also initiated but same ID no. 560/16 Kashmir Singh Vs. NDMC page no. 3 /19 resulted into failure due to adamant and non co-operative attitude of the management;
It is prayed in the Statement of claim to pass an award in favour of the workman holding that the workman is entitled to be promoted on the post of Technical Assistant (X-Ray) with retrospective effect i.e w.e.f 30.10.1997 and he be paid all arrears and consequential benefits either monetary or otherwise.
3. Written statement filed by the management, wherein objections have been taken:
(a) No demand notice was ever sent by the
workman to the management;
(b) Present dispute is not an industrial dispute as
it is not properly espoused by the union or by substantial and appreciable number of workmen of the union;
(c) The reference has been made mechanically without due application of mind;
(d) Workman is working to the post of X ray Technician and performing duties in the management but he is not working as Technical Assistant(X-Ray) w.e.f 30.10.1997. Therefore, the present dispute of the workman is liable to be dismissed on this very legal lacuna;
(e) Present claim of the workman also suffers from the latches and delay as present claim has been ID no. 560/16 Kashmir Singh Vs. NDMC page no. 4 /19 raised in the year 2013 and the present dispute has been filed before this Tribunal after about 15 years' delay, hence, the claim of the workman is highly time barred and belated.
(f) Workman has no right of promotion with retrospective effect, the only right is that he is entitled to be considered for promotion according to the rules of NDMC. Relationship of parties as workman and management is not disputed. Rest of the contentions of the statement of claim are denied and dismissal of the statement of claim with heavy cost is prayed for.
4. On the basis of pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 26.05.2014:-
"(i) Whether any notice of demand was served upon management, if not, its effect?
OPW
(ii) Whether present dispute is an Industrial Disputes as defined in Section 2(k) of Industrial Disputes Act? OPW
(iii) Whether statement of claim is not maintainable on the ground of latches/belated stage? OPM
(iv) As per terms of reference.
5. To prove his case, workman has examined himself as WW1. He tendered his evidence by way of affidavit, which is 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. WW1/7, ID no. 560/16 Kashmir Singh Vs. NDMC page no. 5 /19 which are:-
i. Ex WW1/1 being copy of legal demand notice dated 26.11.2011;
ii. Ex WW1/2 being copy of postal receipt dated 08.12.2011; iii. Ex.WW1/3 being copy of appointment letter for the post of X-Ray Assistant dated 15.11.1983 issued by the management;
iv. Ex.WW1/4 being copy of Office Order dated 26.12.1983; v. Ex.WW1/5 copy of appointment letter for the post of X Ray Assistant(Junior Radiographer) dated 06.08.1984 issued by the management;
vi. Ex WW1/6 copy of office order dated 13.11.1992; vii. Ex. WW1/7 is the copy of representation dated 16.04.1998 submitted by the workman to the management; viii.Ex. WW1/8 is the copy of representation dated 23.05.2011; ix. Ex. WW1/9 is the copy of representation dated 06.07.2011; x. Ex. WW1/10 is the copy of representation dated 18.08.2011;
xi. Ex. WW1/11 is the copy of representation dated 13.10.2011;
xii. Ex. WW1/12 is the copy of espousal by the Union; xiii.Ex. WW1/13 is the copy of statement of claim filed by the workman.
Thereafter, workman examined WW-2 Sh. Surender Bhardwaj who tendered his affidavit in evidence and also relied upon the document Ex. WW1/12 which was referred in the testimony of WW-1. ID no. 560/16 Kashmir Singh Vs. NDMC page no. 6 /19
6. Thereafter, on the same day i.e. on 03.11.2015, vide separate statement Ld. AR for the workman closed workman evidence.
7. To prove its case, management examined Dr. Deepak Bhasin, CMO (Legal), Hindu Rao Hospital, North DMC, near Delhi University, Delhi -110007 as MW1. He tendered his evidence by way of affidavit Ex.MW1/A in which he has affirmed the contents of the written statement. He has also relied upon document Ex.MW1/1, which is:-
(i) Ex.MW1/1 copy of office memorandum dated 22.04.1992 On 15.10.2019, Ld. AR for the workwoman cross-examined MW1.
8. Thereafter, on the same day i.e. on 15.10.2019, vide separate statement, Ld. AR for the management closed management evidence.
9. I have gone through the entire record of the case including pleadings of the parties, evidence led and documents proved during evidence.
ID no. 560/16 Kashmir Singh Vs. NDMC page no. 7 /19
10. This Tribunal heard arguments at length as advanced by Sh. H. Kaushal, ld. AR for the management and Sh. Rajeev Agarwal, ld. AR for the workman. Ld. AR for both the parties have referred all the documents and the evidence during arguments in support of the case of their case. Ld. AR for workman has also relied upon LPA no. 1044/2011 in Tops Security Ltd Vs. Subhash Chander Jha of Hon'ble High Court of Delhi and my issue wise findings are:
11. Issue no.1:
"(i) Whether any notice of demand was served upon management, if not, its effect?
OPW The onus to prove this issue was on the workman. Workman in Ex. WW1/A in para no. 10 deposed that legal demand notice dated 26.11.2011 and copy of postal receipt dated 08.12.2011 was served upon the management. Both were exhibited. Copy of legal notice dated 26.11.2011 is Ex. WW1/1 and photocopy of postal receipt is Ex. WW1/2.
During cross-examination, WW-1 deposed that WW1/1 was sent to the management with signatures of Sh. Surender Bhardwaj, Secretary of the Union by the registered post. He has further deposed that his Union served the demand notice to the ID no. 560/16 Kashmir Singh Vs. NDMC page no. 8 /19 management on 26.11.2011. It is further case of the management that no record of receipt dated 26.11.2011 was found. However, management has not disputed Ex. WW1/2 which is the copy of the postal receipt bearing date 08.12.2011. There is no cross- examination on behalf of management toward this document. Therefore, it is proved that demand notice dated 26.11.2011 was prepared and the said demand notice was sent through post on 08.12.2011. Therefore, the workman has successfully discharged the onus to prove this issue and accordingly, workman has successfully discharged the onus to prove this issue.
12. Issue No.2 Whether present dispute is an Industrial Dispute as defined in Section 2(k) of Industrial Disputes Act? OPW The onus to prove this issue was on the workman. To discharge this onus, WW-2 examined Sh. Surender Bhardwaj, who tendered his evidence by way of affidavit. During cross-examination, it is averred that it is 30 years' old union. A suggestion was given that the Union does not represent sufficient ID no. 560/16 Kashmir Singh Vs. NDMC page no. 9 /19 number of workmen, which was denied. He further deposed that last election was held in the year 2015 whereas WW-2 was examined on 03.11.2015. He has further deposed that workman became member of the Union about 20 years ago. He has further relied upon espousal i.e. Resolution of the Executive Committee of the Union held on 08.11.2021 which is Ex. WW1/12 wherein resolution was passed to raise the present dispute.
MW-1 upon specific question deposed that he was not having special knowledge regarding concept of espousal of an Industrial Dispute before the Tribunal.
It is submitted by ld. AR for workman that the plea taken on behalf of management has not been supported during evidence. Therefore, the plea/objection cannot be sustained.
This Tribunal has considered the testimony of WW-2 and cross-examination of WW-1. During cross-examination WW-1 deposed that he was member of Hospital employees' union since 1995. At the time of becoming the member of union, he paid the subscription fees of Rs.120/-. He further deposed that he is executive member of the Union. He worked as Secretary in the Union. In the Union 30-32 members were the office bearers of the Union. There is one President, one Vice President, four secretary, one General ID no. 560/16 Kashmir Singh Vs. NDMC page no. 10 /19 Secretary, one cashier and rest are the executive members of the Union. He further deposed that he attended the meeting in the year 2015 which was General Body Meeting.
After considering the entire evidence, this Tribunal is of the considered view that workman has successfully discharged the onus to prove this issue as General Secretary of the Union has appeared and deposed that the Union in its meeting agreed to raise the present dispute. Therefore, this dispute is an industrial dispute. Hence, this issue is answered in favour of the workman and against the management.
13. Issue No. 3 Whether statement of claim is not maintainable on the ground of latches/belated stage? OPM This Tribunal is of the considered view that there is no question of delay and belated stage as at no time, there was denial by the workman for the promotion as Technical Assistant (X Ray) by the workman as during the entire testimony, management has not brought any evidence that at any time, workman was informed that his eligibility was denied. Therefore, this Tribunal is of the considered view that clock whereby time has to be counted against the workman as never been started. Moreover, during ID no. 560/16 Kashmir Singh Vs. NDMC page no. 11 /19 cross-examination, WW-1 deposed that he sent representation to the management against his demand. He referred Ex. WW1/7 which bears the date 16.04.1998 whereupon the workman on the letter head of the Union has raised the demand for his promotion. He has further submitted that there were five posts vacant out of six posts of Technical Assistant(Radiology). A suggestion was given on behalf of management that Ex. WW1/7 was never sent to the management. The suggestion was denied. WW-1 further deposed that Ex. WW1/7 was served in the year 1997. He again said in the year 1998. He has further deposed that he made representation in the office in the diary section.
WW-1 during cross-examination further deposed that he made representation to the union regarding his claim. Moreover, it is admitted case of the management that workman has been given promotion in the year 2014 and candidature of the workman for promotion has never been denied by the management. Therefore, issue is answered in favour of the workman in view of observations made here-in- above.
14. Reference:-
ID no. 560/16 Kashmir Singh Vs. NDMC page no. 12 /19 During arguments, it was revealed that on 26.10.2021 it was informed by ld. AR for workman that workman has expired and he wanted to move an application for bringing LRs of the workman on record. Thereafter, vide order dated 27.11.2021, legal heirs of workman were taken on record. It is vehemently submitted by ld. AR for the workman that as per recruitment rules, the eligibility for the post of Technical Assistant (Radiology) is Ex. Ray Technician Radiology with five years regular service in the grade. It is submitted by ld. AR for workman that management filed reply upon application moved by the workman U/s 11(3)(B) of Industrial Disputes Act, 1947 and Rule 15 of the Industrial Dispute Act for production of documents. This application was dealt vide order dated 10.10.2017 by my ld. Predecessor wherein it was held that consequences of production/non-production of requisite record on the part of the management has to be seen at the time of final adjudication. Ld. AR for the workman vehemently submits that this is the stage of final arguments and Tribunal has to look into the documents filed by the management. Management cannot dispute upon those documents as those are documents which have been filed by the management itself. He submits that as per letter dated 22.05.2014 final seniority list of X- Ray Technicians (Radiographers) working in all Municipal ID no. 560/16 Kashmir Singh Vs. NDMC page no. 13 /19 Corporations was circulated along with seniority list of Technical Assistant posted with Municipal Corporation.
According to these documents, date of promotion as X Ray Technician of the workman was 06.11.1992 and therefore he was eligible for Technical Assistant on 6.11.1997. It is further submitted by him that post was lying vacant but the workman was not promoted by the management due to its own fault for which the workman cannot be allowed to suffer the consequences for laxity on the part of management.
In para no. 7 of Ex. MW-1/A it is deposed by MW-1 that workman was not eligible for the post of Technical Assistant as claimed by him. However, nothing has been explained what were the reasons for non-eligibility as admittedly the workman was promoted as Technical Assistant with effect from 28.11.2014.
During arguments, it is submitted by ld. AR for management that for about 17 years DPC was not constituted. Therefore, the case of the workman could not be considered for promotion. This Tribunal is of the view that nothing has been explained for what reason, DPC could not be constituted. One vague argument is raised by ld. AR for management that since funds were not available, therefore, DPC could not be constituted. The Tribunal ID no. 560/16 Kashmir Singh Vs. NDMC page no. 14 /19 has not agreed with such arguments. In the entire case, nothing has been pleaded or established in evidence that management was suffering with crunch of finance and therefore, it was unable to constitute DPC/Screening Committee. Rather, it appears that non constituting of DPC for long 17 years is near to denial of the legitimate right of the workman which was working with dedication with the management, though it is admitted that the said workman was promoted in the year 2014. In cross-examination, it is admitted by MW-1 that workman was promoted as Technical Assistant(X Ray) in the year 2014. MW-1 upon specific question replied that he could not say whether any office order dated 18.02.1998 was issued by the management regarding consideration of the name of the workman for promotion to the post of Technical Assistant(X-Ray) or that any currency report was called by the management in this regard.
Only vague deposition by MW-1 that workman was not found eligible for the post of Technical Assistant as claimed by him, this Tribunal is of the view that MW-1 has not come before the Tribunal with correct facts. MW-1 in para no. 11 of Ex. MW-1/A further deposed that promotion is a departmental work and it is done as per the administrative requirement of the department and present matter of the workman for promotion on the post of Technical Assistant X-ray ID no. 560/16 Kashmir Singh Vs. NDMC page no. 15 /19 w.e.f 30.10.1997 was not justified. Again, this Tribunal is of the view that nothing has been explained by MW-1 which could not not be justified for the promotion of the workman on the post of Technical Assistant(X Ray) w.e.f 30.10.1997 as recruitment rules which have been referred by ld. AR for workman and not disputed by ld. AR for management, itself provides that workman was eligible for promotion on 30.10.1997. During cross-examination, WW-1 admitted that Department Screening Committee promoted X ray technician to the post of Technical Assistant X ray, ACR/RDA report of Vigilance Department and currency of punishment record from the medical institution according to seniority. He voluntarily clarified that his vigilance department report and currency of punishment record was also called in the year 1998. He admitted that promotion is a department work and it is done as per administrative requirements. During cross-examination upon specific question on behalf of management, WW-1 admitted that in MCD there are recruitment rules for the purpose of promotion to the post of Technical Assistant X Ray, 5 years experience on the post of X ray Technician is required.
Therefore, it is admitted case of both the parties that eligibility for five years as per recruitment is required and therefore, workman is entitled to the post of Technical Assistant ( X ray) on 30.10.1997. ID no. 560/16 Kashmir Singh Vs. NDMC page no. 16 /19 Now, during cross-examination of WW-1, it is the case set up on behalf of Ld. AR for the management that there are administrative rules for the promotion. However, nothing more has been brought on record or established on behalf of the management, what kind of administrative requirement were there, except during arguments it is submitted that Department Promotion Committee has to be constituted. MW-1 further deposed that Department screening Committee for the promotion of Technical Assistant has to be constituted but the fact remains that during entire evidence which have been brought on record that at any time between 1997 to 2014 any Department Promotion Committee by the Department Screening Committee was constituted and the workman was not found suitable for the purpose of Technical Assistant (x Ray) or at any time his case was considered and rejected. Therefore, the original reason due to which workman was not promoted between 1997 to 2014 was given that the management did not constitute any Department Promotion/ Screening Committee and for this fact, the workman in any manner was not responsible. It is the part and action on behalf of management which has to be taken from time to time and workman cannot be put on the fault. Therefore, in my considered view that workman has to be promoted earlier as the workman was found ID no. 560/16 Kashmir Singh Vs. NDMC page no. 17 /19 eligible for promotion on 30.10.1997. Now, the question arises on which date the promotion of the workman has to be given. Ld. AR for the workman submits that he has to be given promotion from 30.10.1997 as the workman was found eligible, whereas ld. AR for management submits that workman was already promoted as Technical Assistant (X Ray) with effect from 28.11.2014. Therefore, there should not be any interference but the fact remains that the Management has to justify the delay as the promotion has been denied to the workman for 17 long years. Here, ld. AR for management submits that to constitute Departmental Promotion Committee/Screening Committee there are administrative channels which take time. Therefore, said time has also to be taken into consideration.
In totality of the facts and circumstances of the case, this Tribunal is of the considered view that four years' time would be sufficient to meet out all such administrative requirements to constitute Department Promotion Committee/Screening Committee and to consider the case of the workman and therefore, order for promotion has to be passed. In such circumstances, this Tribunal is of the considered view that workman has to be given promotion for ID no. 560/16 Kashmir Singh Vs. NDMC page no. 18 /19 Technical Assistant (X-Ray) w.e.f 30.10.2001 with all consequential benefits.
Reference is hence answered in favour of the workman on the above observations.
15. 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 18th day of December, 2021 (Jitendra Kumar Mishra) POITI/Rouse Avenue Courts, New Delhi ID no. 560/16 Kashmir Singh Vs. NDMC page no. 19 /19