Delhi District Court
Vijay Kumar Kochhar vs Municipal Corporation Of Delhi on 28 February, 2024
IN THE COURT OF SH. AJAY GOEL:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I,
ROUSE AVENUE DISTRICT COURTS , NEW DELHI.
F.24(20)/E/Lab/14/355
Dated : 06.02.2017
POIT NO.: 68/2017 (DLCT130045612017)
Workman
Sh. Vijay Kumar Kochhar S/o Late Nand Lal Kochhar,
R/o H-13, Nightingale Society, Vikas Puri, New Delhi- 18
Thr. Sh. R.M Sharma, General Secretary D.U.K.S Union B-5,
Ram Gali North Ghonda Delhi -53
Vs.
The Management of
M/s. Commissioner Municipal Corporation of Delhi (East)
Plot No. 419, Udyog Sadan, Patparganj Industrial Area,
Delhi- 110092.
Date of Institution : 12.04.2017
Date of presentation : 14.03.2023
before this court
Date of Arguments : 21.02.2024
Date of Award : 28.02.2024
AWAR D
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 with following terms of the reference:-
POIT No. 68/2017 page 1 of 12 "Whether demand for proper pay scale (i.e. Rs. 330-560) of Sh. Vijay Kumar Kochhar S/O Late Nand Kishore Kochhar w.e.f. 07.08.1996 for the post of Asstt. Librarian which was revised in Fifth & Sixth Pay Commission report is legal and/or justified and if so, what directions are necessary in this respect?"
2. Statement of claim has been filed by the workman stating that the workman Shri Vijay Kumar Kochhar joined into the employment of M/S Municipal Corporation of Delhi in its Health Department of Swami Dayanand Hospital, Shahadra on the post of Assistant Librarian on dated 07.08.1986 into the pay scale of Rs. 260-400 with usual allowances admissible under the Rule which was revised from time to time under the Pay Commission Reports. The workman had un-blemished & uninterrupted record to his credit. It has been further stated that the Management of MCD revised Pay Scale for Librarian w.e.f. 01.01.1973 into the Pay Scale of Rs. 330- 560 vide its Resolution No. 383 dated 09.05.1985. It has been further stated that the similarly situated workmen posted in Hindu Rao Hospital & Kasturba Gandhi Hospital having equal qualification and same post have been upgraded in the higher pay scale of Rs. 330-560 w.e.f. 01.01.1973, while the present workman is getting salary into the pay scale of Rs. 260-400 w.e.f. 07.08.1986. The Management of MCD has upgrade the post of Assistant librarian in Swami Daya Nand Hospital on analogy of Hindu Rao Hospital and Kasturba Gandhi Hospital from the pay scale of Rs. 3050-4590 to Rs.
POIT No. 68/2017 page 2 of 12 4000-6000 w.e.f. 01.04.1998 in place of 07.08.1986. It has been further stated that denial of same amounts to sheer exploitation of labour as provided in Section 2(ra) reads with Item No. 10 of the Vth Schedule of Industrial Dispute Act, 1957 as well as violation of Articles 14, 16 & 39(d) of the Constitution of India.
3. The workman prayed that an award be passed in favour of workman Shri Vijay Kumar Kochhar thereby granting him pay scale of Rs. 330-560 w.e.f. 07.08.1896 for the post of Assistant Librarian which was revised in Vth. & 6th Pay Commission Report and which was granted according to Standing Committee of MCD Resolution under which MCD granted pay scale of Rs. 330-560 from 1.1.1973 to the Assistant Librarian of the Same categories of Hindu Rao Hospital & Kasturba Hospital of MCD along with all consequential benefits as are privileged by the Municipal Corporation of Delhi.
4. Written statement has been filed by the management wherein they contended that no demand notice has been served upon the management prior to raising of the present dispute; that the reference has been made mechanically without due application of mind; that the present dispute has not been properly espoused by the Union and as such the same is not maintainable and is liable to be dismissed. It has been further contended that the present dispute has been POIT No. 68/2017 page 3 of 12 raised by the claimant before this Tribunal after his retirement i.e. 31.08.2009 which is not sustainable and tenable under the law of land, as the same suffers from the latches and delay i.e. after about 31 years. It has been further contended that there is no relationship exists between the parties as a "Master and Servant" and "Employees and Employer" because the workman retired from his service on 31.08.2009, hence the present dispute of workman is not maintainable and tenable under the law. It has been further contended that the workman Sh. Vijay Kumar Kochhar is not a "workman" under the definition of Section 2(S) of the Industrial Dispute Act, hence the present dispute of the workman is not maintainable and is liable to be dismissed.
5. Rejoinder was filed on behalf of the workman wherein all objections raised in the preliminary objections have been denied by the workman and reiterated and affirmed the contentions made in their statement of claim filed by him.
6. On the basis of pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 12.11.2018:-
"(i) Whether the claim of the workman has been properly espoused by the Union? OPW
(ii) Whether the statement of claim of the workman is not maintainable in view of the preliminary objection nos. 4, 6 & 7 taken by the management in its written statement?OPM
(iii) Whether statement of claim of the workman suffers from delay and latches and thus is not maintainable in law as alleged by the POIT No. 68/2017 page 4 of 12 management vide preliminary objection no. 5 of its written statement?OPM
(iv) As per terms of reference?OPW
(v) Relief.
7. To prove his case, the workman examined himself as WW-1 and filed his affidavit Ex. WW1/A in lieu of his examination in chief. He relied upon document Ex. WW1/1 to Ex. WW1/4 and Mark A to Mark H.
8. On the other hand, management examined Dr. Anuj Narayan Mathur as MW-1, who filed his affidavit Ex. MW1/A in lieu of his examination in chief. He relied upon document Ex. MW1/1 to Ex. MW1/2. Thereafter, ME was closed and the matter was put up for final arguments.
9. Final arguments have been heard at length from both parties.
10. I have gone through the entire records of the case including pleadings of the parties, evidence led and documents proved during evidence.
11. My issue wise findings are:-
Issue No. 1:-
Whether the claim of the workman has been properly espoused by the Union? OPW
12. Ld. AR for the management has argued that no demand notice has been served upon the management prior to raising of the present dispute. Management has further contended in their written statement that the present dispute has not been POIT No. 68/2017 page 5 of 12 properly espoused by the Union and as such the same is not maintainable and is liable to be dismissed.
13. Ld. AR for the workman on the other hand has relied upon Ex. WW1/1 which is legal demand notice dated 10.03.2014 sent to the management on the letter head of Delhi Udhyan Karamchari Sangharsh Union (Regd. & Recognised by M.C.D.). Workman has also relied upon the postal receipt Ex. WW1/2, copy of statement of claim filed before the conciliation officer Ex. WW1/3 as well as copy of espousal Ex. WW1/4. To prove his case as well as espousal workman examined himself as WW-1. In his cross-examination WW-1 conducted by ld. AR for the management has categorically admitted that alleged Legal notice Ex. WW1/1 does not bear his signature. He further admitted that he did not sign Ex. WW1/4 which is alleged espousal. WW-1 further admitted that It he has filed the copy of statement of claim Ex.WW1/3 which is dated March, 2014 or that Ex.WW1/3 is neither stamped nor signed by the concerned official of the Dy. Labour Commissioner. WW-1 in his cross-examination further categorically admitted that he is not a member of the Union Delhi Udhyan Karamchari Sangharsh Union (Regd) or that due to this reason he did not file the copy of the subscription fee, membership form, membership register.
14. The relevant part of cross-examination of WW-1 is reproduced herein which reads as under:
POIT No. 68/2017 page 6 of 12 "It is correct that Ex.WW1/1 does not bear my signature. It is correct that there is no acknowledgement receipt of Ex.WW1/1. It is correct that I have not filed any acknowledgement of the delivery of the Ex.WW1/1 (Vol. I have filed the copy of the postal receipt, which is Ex. WW1/2). I attended the conciliation proceedings before the Dy. Labour Commissioner, Pratap Khand, Jhilmill Colony, Delhi three times. It is also correct that I have not signed the document, which is Ex. WW1/4. ......It is correct that I am not the member of the Delhi Udhyan Karamchari Sangharsh Union (Regd.) and due to this reason I have not filed the copy of the subscription fee, membership form, membership register."
15. Admittedly, the workman failed to prove that he is member of the Delhi Udhyan Karamchari Sangharsh Union (Regd. & Recognised by M.C.D) as he has not filed any document on record to show that he is a member of aforesaid Union. Perusal of Ex. WW1/1 which is legal demand notice does not bear signature of the workman anywhere. The workman has failed to place on record copy of any written complaint to the Union, copy of the subscription fee, membership form, membership register, minutes of meeting, agenda, etc.
16. In M/s Hotel Samrat vs. Govt. of NCT of Delhi & Ors. 2007 LLR 386 (Hon'ble Delhi High Court), it has been held:-
"12. The dispute between an individual workman and the employer can be treated as an industrial dispute only where the workmen as a body or a considerable section of them, make common cause with the individual workman and espoused his POIT No. 68/2017 page 7 of 12 demand. The question arises how the espousal can be inferred. Espousal means that the dispute of an individual workman is adapted by union as its own dispute or a large number of workmen give support to the cause of an individual workman. In the instant case, the only evidence available on record about espousal of the cause is the statement of the Secretary of the Union made before the Tribunal. In his statement, he stated that he requested the management to treat workman Hira Singh at par with other employees and grant him regular pay scale and he met the management for this purpose and on his pursuance, the management started deducting provident fund from salary of the workman Hira Singh. There is no evidence apart from this evidence about the espousal of the cause. Does mere lending of name of the union by the union secretary while raising the conciliation proceedings or for issuing notice amount to 'espousal' of cause'? Union is a representative body of the workmen. The cause of any workman can be espoused collectively by the Executive Body of the union by taking a decision in this respect. This decision may not be taken in a formal manner but can be taken in an informal manner but it has to be a collective decision of the executive body of the union. An individual member of the Executive body cannot take the character of the entire union and cannot bind the union. Merely because the union secretary met the management and requested for giving a regular appointment letter to the workman, would not amount to espousal of the cause. In this case, this is the only evidence available on record in respect of espousal. In J.H. Jadhav's case(supra), the Supreme Court observed that the union must formally express itself in the form of a resolution which should be approved by its members.
However, the number of supporting members of the union may be relevant depending upon facts of each POIT No. 68/2017 page 8 of 12 case. In 1961 II LLJ 436 Bombay Union of Journalists v. Hindi Bombay, the Supreme Court observed that an individual dispute can take the character of an industrial dispute only if it was proved that it was, before it was referred, supported by union of employees. In each case, for ascertaining whether an individual dispute has assumed character of an industrial dispute, the test is whether on the date of reference, the dispute was taken up and supported by the union of the workmen of the employer against whom the dispute is raised by the individual workman or by an appreciable number of employees. In this case, the Supreme Court observed that notice of the meeting for the purpose of considering request by the members for tenable cause of concerned workmen was not given to the employees of the Hindu Board which were not the members of the union at the relevant time. Hence, by mere passing of a resolution by other members of the union, the case of the appellant that the cause of concern workmen was supported by the other employees of Hindu Board, could not be supported. The Supreme Court observed that unless an individual dispute was taken up by union of employees of the employer or by appreciable number of employees of the union, it remains as an individual dispute and does not become an industrial dispute. In 2001(89) FLR 458 Prakash and Ors v. Superintending Engineer(ELEL) and Ors, the Karnataka High Court observed that an individual can raise a dispute, only for removal, termination or dismissal. If the workman wants to raise a dispute for his absorption and regularization, that can only be done through the union on behalf of workman or workmen."
17. In Tirupathi Cotton Mills Ltd Vs. Labour Court and anr, (1968) II LLJ 723 AP it has been held in para no. 10 that:
POIT No. 68/2017 page 9 of 12 "It is unnecessary to multiply cases Sufficient to say that unless there is a concerned action evidencing indication on the part of a substantial or appreciable number of workmen of the establishment it will be impossible to hold that the dispute, which on the face of it must be regarded as an individual dispute, has been converted into an industrial dispute. It is only then we may assume that it was a collective bargaining on the part of the workers with the employers. This concerned action may as well be evinced by a union which is substantially interested in the dispute as having a large number of members of the employees of that establishment."
18. Apparently, the question arises here that who can raise this dispute. The Industrial Dispute can be raised certainly within the frame work of Industrial Dispute Act and it has to be raised by the Union who can establish that dispute is of employment or non employment or with the conditions of labour of any person. Therefore, for this purpose, the Tribunal has to see whether there is support of sufficient number of workmen towards raising of that dispute.
19. This process to raise the dispute by sufficient numbers of workmen has to be termed as espousal and inasmuch as if the espousal is there in favour of the workman to raise the present dispute. For an industrial dispute there should be an espousal by passing a resolution to raise the dispute. No other member of the union has been called to certify that the workman was the member of the aforesaid union or that no copy of constitution has been filed on record which could prove that POIT No. 68/2017 page 10 of 12 meeting was held by General Secretary or President. Even It is not the case of the workman that majority number of the workmen have duly represented the cause of the workmen. Moreover, no witness has been called from the Union to prove the espousal in accordance with the law. Hence, in the absence of proper espousal, issue no. 1 is answered against the workman.
20. In view of categorical admission of workman that he is not the member of the Delhi Udhyan Karamchari Sangharsh Union (Regd.) or that due to this reason he did not file the copy of the subscription fee, membership form, membership register, this tribunal holds that the workman has miserably failed to prove the issue no. 1. Hence, this issue i.e. Issue no. 1 is decided in favour of the management and against the workman concerned.
21. Hon'ble High Court in para no. 14 of Management of Hotel Samrat Vs Govt of NCT and ors (supra) has held that Tribunal has jurisdiction to adjudicate only an industrial dispute. When this Tribunal came to the conclusion that the cause of the workman was not espoused, then, the Tribunal lost its jurisdiction to adjudicate the dispute since no industrial dispute exists. Therefore, in this case, this Tribunal has decided the issue of espousal against the workman. Hence, regarding deciding of other issues, this Tribunal has lost its jurisdiction.
POIT No. 68/2017 page 11 of 12
22. Keeping in view the observations made herein-above, present reference is answered against the workman.
23. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Digitally signedAJAY by AJAY GOEL Date: 2024.02.29 Announced in the open Tribunal GOEL 10:54:45 +0530 on this 28.02.2024. (Ajay Goel) POIT-I/RADC, New Delhi. POIT No. 68/2017 page 12 of 12