Delhi District Court
Workman vs . on 1 May, 2014
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No 147/11
Workman
Mrs. Joginder Kaur w/o Shri Nahar Singh ANM, A-14, G-1, DDA Flats,
Dilshad Garden, Delhi.
Vs.
Management
M/s Director of Health Services, F 17, Karkardooma, Delhi.
Date of institution 29.08.2011
Date of reserving award 22.04.2014
Date of Award 01.05.2014
Ref : F.24/Lab/ED/2011/2599 dated 24.08.2011
AWARD
1.Workman 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 reference:-
''Whether Mrs. Joginder Kaur w/o Sh. Nahar Singh is I.D. No 147/11 Page 1 of 7 entitled for the benefit of her services rendered in DDA in calculating her services for retirements benefits if so what relief she is entitled?"
2. Statement of claim has been filed by the workman, wherein it is stated that she joined the management of DDA on 11.12.1970 on the post of ANM and thereafter, her services were transferred to Directorate of Health Services; that the workman discharged her duties with unblemished record; that she retired from services on 29.02.08; that at the time of her retirement, her services rendered with DDA were not counted for retiral benefits and gratuity etc.; that the workman discharged her duty continuously from 11.12.70 till her retirement; that demand notice was also served upon the management in this regard vide Regd Post, but no reply has been received so far.
3. It is, therefore, prayed that Award be passed in favour of the workman for the benefits of her services rendered in DDA during the period from 11.12.1970 to 31.03.1979, calculating her services for retiral benefits, gratuity, pension etc. alongwith consequential benefits monetary or otherwise. Cost of litigation has also been prayed for.
4. In the written statement filed for management it is stated that present claim is not maintainable due to mis-joinder and non-joinder of necessary party as DDA has not been made party in the present claim; that the workman was initially appointed on temporary basis in DDA and worked till her transfer to the present management governed by GNCT of Delhi; that the workman never challenged her transfer and absorption w.e.f. 1.4.1979 in Delhi Government; that the management requested DDA about the entitlement of workman during her tenure with DDA, but I.D. No 147/11 Page 2 of 7 the DDA did not respond properly; that the services of workman cannot be counted as qualifying services for pension purpose under Rule 13 of CCS (Pension) Rules, 1972 as it is paid from a source other than consolidated fund of India; that the workman had got all pensionery/retiral benefits from the management for her service tenure with the present management w.e.f. 1.4.1979; that this Tribunal has no jurisdiction over the dispute of gratuity and pension. All other contentions made in the statement of claim have been denied and dismissal of the same has been prayed for.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 07.05.2012:-
1. Whether the present claim is bad for non-
joinder of necessary party i.e. DDA? OPM
2. As per terms of reference.
6. Workman examined herself as WW 1. In her affidavit filed by way of examination-in-chief, she has more or less, reiterated the contentions made in statement of claim.
7. In cross-examination, WW 1 has deposed that PF was deducted from her salary during the tenure in DDA. She has deposed that salary from DDA and after transfer in DHS was same. She has deposed that she has received entire terminal benefits from department of health. She has deposed that she has received provident fund also from DHS. She has deposed that she has received entire dues from DHS but her continuation of service of DDA has not been counted. She is not aware whether services of DDA is covered under Delhi Govt. Pension Scheme for the benefit from DDA in respect of the pension.
8. Management has examined Sh. Neeraj Kumar, Pharmacist as MW 1. In his affidavit, filed by way of examination-in-chief, he has I.D. No 147/11 Page 3 of 7 more or less reiterated the contents of written statement. In his cross- examination, he has deposed that past services rendered by Smt. Sudharshan Kumari ANM, Smt Bimlesh Kumari ANM and Smt. Mahendri Devi ANM, who appear at Serial No 1, 4 & 5 in document Ex. WW 1/6 and who are similarly situated as concerned workman Smt. Joginder Kaur, in DDA, have been counted by the management for their death-cum-retireal benefits. It is deposed by MW 1 that Smt. Joginder Kaur has not been given the benefits of past services rendered by her in DDA and that he has no reason to state for the same.
9. I have heard arguments from Sh. Surender Bhardwaj, Ld. AR for the workman and Sh. Gaurav Dubey, Ld. Proxy Counsel/AR for management. I have carefully gone through record of the case. My findings on the issues are as under:-
10. Findings on issue no.1 Issue no.1 is : Whether the present claim is bad for non-joinder of necessary party i.e. DDA? OPM
11. It is the case of management in written statement that present claim is not maintainable due to mis-joinder and non-joinder of necessary party as DDA has not been made party in the present claim; that the workman was initially appointed on temporary basis in DDA and worked till her transfer to the present management governed by GNCT of Delhi.
12. It is worth noting that it is admitted case of management that workman Smt. Joginder Kur has retired from management of Directorate of Health Services and also that it is this management that is giving retiral benefits to concerned workman. The only issue relevant in the present case is whether workman Mrs. Joginder Kaur is entitled for the benefit of I.D. No 147/11 Page 4 of 7 her services rendered in DDA in calculating her services for retirements benefits.
13. On these facts and circumstances, I am of the considered opinion that DDA is not necessary party in this case and it is not even required to be made as proforma party. Hence, it is held that present claim is not bad for non-joinder of DDA as party. Issue no.1 is decided accordingly.
14. Findings on the issue no.2 Issue no.2 is : As per terms of reference. Terms of reference are ''Whether Mrs. Joginder Kaur w/o Sh. Nahar Singh is entitled for the benefit of her services rendered in DDA in calculating her services for retirements benefits if so what relief she is entitled?"
15. It is the objection of management in its written statement that the services of workman cannot be counted as qualifying services for pension purpose under Rule 13 of CCS (Pension) Rules, 1972 as it is paid from a source other than Consolidated fund of India.
16. Rule 13 of Central civil Services (Pension) Rules, 1972 provides as under:-
Commencement of qualifying service.- The qualifying service of a Government servant commences from the date he takes charge of the post to which he is appointed substantively. In the case of an appointment on an officiating or temporary capacity, the qualifying service shall commence from the date the Government servant takes charge of the post if such officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Service rendered before attaining the age of eighteen years shall not count for any purpose i.e. pension or gratuity. However, in the case of 'compensation gratuity' the service rendered before attaining the age of eighteen years will also count. (emphasis supplied) I.D. No 147/11 Page 5 of 7
17. It is admitted case of parties that workman worked with DDA before her joining the present management i.e. Directorate of Health Services. There is no case of management that there is any interruption in services of the workman Smt. Joginder Kaur. Rule 13 does not in any way bars the present workman from counting her services with DDA for the purpose of retirement benefits. Hence, objection of management in this regard is baseless.
18. It is also the objection of management that this Tribunal has no jurisdiction over the dispute of gratuity and pension.
19. Section 7A (1) of Industrial Disputes Act, 1947 provides as under:-
The appropriate Government may, by notification in the official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule and for performing such other functions as may be assigned to them under this Act. (emphasis supplied)
20. Schedule three of Industrial Disputes Act enumerates 11 items. Item 11 provides for 'any other matter that may be prescribed'. Further, Schedule Two enumerates 6 items. Item 6 of the said Schedule Two refers to all matters other than those specified in the Third Schedule.
21. In view of Section 7 A (1) read with item 6 of Schedule Two, I am of the considered view that this Tribunal is within its jurisdiction to decide the issue of pension and gratuity. Hence, objection of management in this regard is rejected.
22. Now, coming to the entitlement on the basis of parity, it is worth noting that MW 1, in his cross-examination, has deposed that past services rendered by Smt. Sudharshan Kumari, ANM, Smt. Bimlesh Kumari, ANM I.D. No 147/11 Page 6 of 7 and Smt. Mahendri Devi, ANM, who appear at Serial No 1, 4 & 5 in document Ex. WW 1/6 and who are similarly situated as concerned workman Smt. Joginder Kaur, in DDA, have been counted by the management for their death-cum-retiral benefits. It is also deposed by MW 1 that Smt. Joginder Kaur has not been given the benefits of past services rendered by her in DDA and he has no reason to state for the same.
23. Moreover, vide letter dated 15.1.14, which is Ex. MW1/W1, written by Dr. Madhu Chhanda, Chief District Medical Officer to Administrative Officer, Directorate of Health Services, the fact of counting past services of above stated three employees with DDA, has been duly conceded. Hence, in my considered opinion, management is not justified in not counting the past services of present workman, rendered by her in DDA, for retirement benefits.
24. In view of above discussion, it is held that workman Mrs. Joginder Kaur w/o Sh. Nahar Singh is entitled for the benefit of her services rendered in DDA, in calculating her services for all retirement benefits. Management will pass necessary order in this regard, within three months from the date of enforcement of this award. Issue no.2 is decided accordingly and award is passed in these terms.
25. Copy of this award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open Tribunal
on 01.05.2014 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
I.D. No 147/11 Page 7 of 7