Delhi District Court
Surender Kumar vs Delhi Jail Board Management on 12 March, 2009
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IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D. No.06/06
Surender Kumar Petitioner
S/o Sh. Vishwanath
C/o Delhi Udhyan Karamchari Sanghrash Union,
B-5, Ram Gali, North Ghonda, Delhi 110053.
Versus
Delhi Jail Board Management
Through its Chief Executive Officer,
Varunalya Bhawan, Phase-II, New Delhi 110005.
AWARD
1.Applicant has raised the present industrial dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this tribunal in the following terms:-
''Whether the demand of Sh. Surender Kumar S/o Late Sh. Vishwanath for appointment on compassionate ground on suitable post is legal and/ or justified and if so, to what relief is he entitled and what directions are necessary in this respect ?''.
2. Notices were issued to both the parties. Applicant appeared and filed statement of claim alleging that Sh. Vishwanath, father of the applicant, was engaged as daily 2 wager beldar w.e.f. June, 1972 and was regularized w.e.f. 1.4.1980 as Beldar under Delhi Water Supply and Sewage Disposal Undertakings. It is alleged that his father expired on 3.3.1983 leaving behind his wife Smt. Sita Devi and two minor children, petitioner ( who was 2-1/2 years old at that time) and his sister Kumari Sunita Devi ( who was 5 years old at that time). It is alleged that his mother also expired on 17.11.1984. No death benefits of his father were allegedly paid to his mother nor to them till 1999. On attaining majority in 1999, he allegedly made application dated 13.4.1999 with the management for his appointment on suitable post on compassionate ground. He is alleged to have also produced requisite documents and a no objection from his sister before management as desired by it. Petitioner is alleged to have been called by the management to appear on 29.3.01 to open duplicate PF and S.B. accounts. It is alleged that petitioner was again called to appear for interview on 13.10.01 at 10.15. He is alleged to have failed in interview which is violation of labour laws. Demand notices dated 30.6.03, 6.1.04 and 10.1.05 were allegedly sent to the management but of no avail. The petitioner raised the present dispute which has been made over to this Tribunal for adjudication. 3
3. In the WS filed by the management, it has not been disputed that father of the petitioner Vishwanath was employed with management as Beldar or that he had expired on 3.3.1983 or that his son ( petitioner) had made application for appointment on compassionate grounds. However, it is alleged that claim of the petitioner is belated one inasmuch as workman expired in 1983 and application for appointment on compassionate ground was made in 1999 ( after 16 years), therefore, claim of the petitioner was rightly rejected. It has been denied that no death benefits were paid to petitioner till 1999. It is alleged that all the benefits were given to LRS of the deceased workman in 1999 inasmuch as they approached the management only in that year. It is alleged that as per policy of the Government, claim for appointment on compassionate grounds could be considered within 5 years of death of the workman but application in this case was made after 16 years of the death of workman, therefore, petitioner was not held entitled for appointment. Dismissal of the reference has been prayed for.
4. In in the rejoinder, petitioner has reiterated and reaffirmed all the facts as set out in statement of claim and denied all the facts as embodied in the WS.
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5. On the basis of pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 6.12.07 :-
(1) Whether the applicant is a workman and the present dispute is an Industrial dispute ? (2) Whether the dispute has been duly espoused?
(3) As per terms of reference.
6. In order to prove his case, petitioner has examined herself as WW 1 by filing her affidavit and was duly cross examined whereas on behalf of Management MW 1 Sh.
B.K.Pandey, Assistant Commissioner ( General) has been examined who has also been duly cross examined.
7. I have heard ARs for both the parties and also gone through the record and evidence led by both the parties. My issue wise findings are as under :-
8. Findings on issue No 1 Issue no.1 is whether the applicant is workman and the present dispute is an industrial dispute. Case of the management in the WS is that Vishwanath was employed by the management who was died on 3.3.83. It is also case of the management that applicant who is son of the deceased workman is not a workman within the section of section 2 (s) of I.D.Act therefore, he is incompetent to raise 5 the present dispute nor the present dispute is an industrial dispute. On the other hand case of the workman is that he is son of the deceased who was in employment of management, therefore, he has right to raise the present dispute. In the present case management has filed on record the scheme for compassionate appointment No.14014/6/94-Estt(D) dated 9.10.88. This scheme provides for a scheme of rehabilitation for the family of deceased workman and enables the family members of deceased workman to meet challenges of distress and penuary or lack of resources at their disposal. According to provisions of scheme, parameters have been prescribed within which a family member of deceased workman can be considered for immediate employment. It also prescribes that in any case, intake of family member of deceased workman should not exceed 5% of cadre strength of class C and D. It also prescribes parameters within which family member of deceased workman can be considered for compassionate employment. The main criteria for consideration is attendant circumstances under which family finds itself in distress and penuary immediately after death of the workman. If on totality of facts and circumstances of the case a family members 6 need urgent attention of the management to protect them from destitution, employment on compassionate ground to one of its members is only an enabling provision. But neither it can create any right in favour of family member nor the same can be claimed as a matter of right.
9. However, question involved in this issue whether applicant was not a workman incompetent to raise the present dispute. The scheme referred to above is to offer employment on compassionate ground to family members of the deceased employee as per policy of the department. Though it does not create any right in favour of any of family members of deceased to be given alternative employment in lieu of deceased employee nevertheless it creates a right in favour of family members of deceased to be considered for compassionate appointment. In Ganesh Goel vs Secretary Delhi Development Authority 2007 ( 114) FLR 1011, it has 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 indefeasible right to be appointed.
10. In my considered opinion the scheme of 7 compassionate appointment framed by the management form part of the service conditions of the employment. After the death of an employee if any provision of Rules and Regulations or Schemes, governing service conditions of the employees provides for some benefit or any kind of right only after the death of the employee, such a benefit since becomes available only after death of the employee, being part of the service condition of the employee is enforceable by his dependents after his death. Therefore when Vishwanath died on 3.3.1983, benefit of scheme of compassionate employment framed by the management could have been availed by the family members of the deceased only after his death. It is not case of the management that present applicant had not made any representation for alternative employment. Rather case of the management is that applicant had applied for employment on compassionate ground and same was rejected as he was not found entitled for the benefit. In these circumstances, scheme of compassionate employment being part of the service condition creates a right of being considered in favour of dependents of the deceased. Therefore, present applicant is entitled to raise the present dispute and present dispute being in 8 connection with enforcement of service conditions of deceased workman squarely falls within the scope of industrial dispute. This issue is accordingly decided.
11. Findings on issue no.2 Issue no.2 is whether the dispute has been duly espoused. Case of the management in WS is that present dispute of the applicant has not been duly espoused as such reference is bad in law and liable to be rejected. On the other hand case of the applicant is that dispute was duly espoused by the union. However, no evidence has been led by the management to substantiate this issue.
12. Workman has proved on record document Ex WW1/6 by virtue of which Union had put up demand for appointment of the applicant on compassionate ground with the management. He has also proved on record Ex WW1/8 i.e resolution of the Union by virtue of which cause of the applicant was espoused. No evidence has been led in this regard by the management. I, therefore, come to the conclusion that present dispute has been duly espoused. This issue is accordingly decided.
13. Findings on issue no.3 The terms of reference are 'Whether the demand of Sh. Surender Kumar S/o Late Sh. Vishwanath for 9 appointment on compassionate ground on suitable post is legal and/ or justified and if so, to what relief is he entitled and what directions are necessary in this respect ?''. WW 1 in his affidavit has deposed that his father Vishwanath was engaged by MCD in its DBS and SD Undertaking in June 1972 as Beldar and was regularised on 1.4.80. It is deposed that his father expired on 3.3.83 leaving behind his wife Smt. Sita Devi, this petitioner and his sister. It is deposed that at the time of death of his father, he was 2-3 years old and his sister was 5-6 years old. He is deposed to have applied with the management for death benefits vide his application dated 13.4.99 on his having acquired majority. He has deposed to have sought appointment on compassionate ground vide his letter EX WW 1/1. Management is deposed to have required this witness to produce more documents vide its letter EX WW 1/2. Management is further deposed to have asked him vide its letter EX WW 1/3 to open duplicate PF and SB accounts is deposed to have sent a letter to him EX WW 1/4 requiring him to appear for interview. However, his candidature was rejected by the management. Therefore, he is deposed to have filed representation EX WW 1/5 whereafter legal notices EX WW 1/6 and 7 are deposed to have been 10 served on management but of no avail. He has proved copy of statement of claim filed before conciliation officer as EX WW 1/8, reply filed thereto by management EX WW 1/9 and rejoinder filed by applicant has been proved as EX WW 1/10. It is deposed that non appointment of the applicant by the management on compassionate ground is inconsistent with the labour laws as well as Constitution of India.
14. MW 1 Sh. VK Pandey in his affidavit has deposed that father of applicant expired on 3.3.83 but dispute for appointment on compassionate ground was raised by applicant on 30.6.03 i.e after a period of 20 years. It is deposed that application of the applicant was rejected by management being in conflict with the prevailing policy of the government. It is deposed that claim of applicant for appointment on compassionate grounds is highly belated and that Govt. of India Guidelines do not allow consideration of such cases beyond a period of 5 years. Copy of such policy has been proved as EX MW 1/1. Other documents have been proved as EX MW 1/2 and 1/3.
15. It has been argued on behalf of applicant that when his father died on 3.3.1983 he was only two and half years old. It is also argued that no person below 18 years 11 could have been offered employment, therefore, when applicant acquired age of 18 years, he made a representation to the management on the basis of which he was called for interview on 13.10.01 at 10.15 a.m. It is argued that thereafter, no response was given by the management. It is also argued that delay of 15 years in raising demand for compassionate employment is only because at the time of death of his father, the applicant was two and half years of age and he applied for the employment on compassionate ground when he acquired age of 18 years, therefore, applicant is entitled to be appointed on compassionate ground.
16. On the other hand, it has been argued that management that representation given by the applicant was considered and was rejected since family of the deceased workman had sustained itslef for 15 years, it does not show that family was in urgent need of alternative employment on compassionate ground to support the family. Secondly, it is argued that compassionate employment can not be claimed as a matter of right. Thirdly, it is argued that representation of the applicant was considered and he was not found entitled to be offered employment on compassionate ground, therefore, same 12 was rejected.
17. 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 can not be claimed as matter of right. It is only an enabling measure to support family of the deceased employee under urgent distress or penuary to save its member from destitution. In Ganesh Goel vs Secretary DDA ( supra), it was held that only right which exists in favour of family members of the deceased is a right to be considered for compassionate employment and not a right to be appointed in substitution of deceased employee. In the present case, workman had given representation which was considered by the management, therefore, it can not be said that claim of the applicant has not been considered by the management. Deceased workman died on 3.3.1983. However, at that time present workman was 2-3 years of age. He acquired age of 18 years on 13.4.1999. Thereafter, he gave representation 13 and called for interview. His right was considered in accordance with police of the management. On the parameters prescribed in the policy, present applicant was not found entitled to be offered employment on compassionate ground. It appears that circumstances which weighed with management were that the family of the deceased had sustained itself for 15 years, certainly it did not require immediate help of the management to support it. These circumstances also rule out that family of the deceased was in immediate distress of penuary or required immediate attention of the management. Only right vested in LRS of the deceased within the parameters of the scheme framed by the management was to be considered if employment on compassionate ground. Applicant was considered and he was not found entitled to be appointed on compassionate ground, therefore, he can not enforce such rights through the instrumentality of this tribunal. Even a decision of the management can not be subject matter of the judicial review by this tribunal. In view of above authorities I hold that demand of the applicant for appointment on compassionate ground on suitable post was not justified and legal and as such he is not entitled to any relief. This issue is accordingly decided. 14
18. In view of my findings on various issues referred to above, I am of the view that demand of the applicant for appointment on compassionate ground on suitable post was not justified and legal and as such he is not entitled to any relief. Reference is answered in above terms and award is passed accordingly. Copy of award be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court on 12.03.09 (BABU LAL)
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.