Delhi District Court
Petition Filed By The Workmen Had Also ... vs Mohinder on 10 August, 2018
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IN THE COURT OF MS SHAIL JAIN, PRESIDING OFFICER, INUDSTRIAL
TRIBUNAL02, DWARKA COURTS, NEW DELHI
ID No. 833/16
1. Shri Darshan Kant Colly
r/o Houise No 10/4A, First Floor
Moti Nagar, New Delhi
2. Sh O P Sharma
r/o House No. K245,
Kangra Niketan Vikas Puri New Delhi
through Delhi State Electricity Workers Union
H287, DESU Colony
Tripolia Gurmandi, Delhi07.
.......... Workmen
Versus
BSES Rajdhani Power Ltd
Shakti Bhawan, Nehru Place, New Delhi.
........Management
Date of Institution: 08/08/2013.
Date of Award: 10/08/2018
A W A R D
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1) Present reference was sent by the Government of NCT of Delhi vide
Order dated 15/04/13 vide reference No. F.24(52)/Lab/SD/2013/6509. The
terms of reference is worded as follows:
"Whether the workmen Sh Darshan Kant Colly and
Sh O.P. Sharma who had been assigned the work of
Assistant Accountant vide order No E/NT8990/411
dt 04/01/90 are entitled to the wages of Assistant
Accountant and if so, to what directions are
necessary in this respect?
Earlier the reference was marked to Ld POLC, Karkardooma, but by
way of Corrigendum dt 06/11/13, same was marked to POIT, Karkardooma &
was received in this Tribunal by way of transfer on 09/02/2018.
2) In the statement of claim, workmen had claimed that they had been
appointed in the erstwhile DESU and had been working as Senior Clerks
and they had been ordered to work as Assistant Accountant without any extra
remuneration in their pay scale of Sr Clerk vide order dt 04/1/1990. The
management of DESU had upgraded 171 posts of Senior Clerks as Asstt
Accounts in the scales of Rs.16403275 vide order dated 04/01/1990 and
accordingly 171 Senior Clerks had been asked to work against the upgraded
posts of Asstt Accountant while designated as Senior clerks. Accordingly all
the 171 workmen including the present workmen had worked continuously for
about 10 years without any break. The workmen were then regularized in the
grade of Assistant in April 2000 and thus all the workmen had worked
continuously and worked as Assistant Accountant while getting the pay
scales of Senior Clerks. The workmen/union had requested the management
for payment of emoluments for the posts of Assistant Accountant as the
workmen had been performing their duty of higher posts of Assistant
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Accountant without any complaint but the said request had not been acceded
to and accordingly DESU employee union had raised an industrial dispute on
08/06/93 and the abovesaid dispute had been decided by the court of Shri
P.S. Teji Ld ADJ/POIT vide order dated 09/12/2002 whereby Sh K L Sharma
and Shri D.K. Gupta, two officials in the list of 171 workmen, who had been
ordered to work as Assistant Accountant vide order dt 04/01/90 had been
ordered to be given the payscales of Asstt Accountant ie Rs.16403275/
(old) in pursuance of the order dt 04/01/90 till they were actually placed in
that scale on promotion. The other workmen in the order dt 04/01/90 had not
been given the benefit of award as they had not come to give evidence in
this case and Ld Presiding Officer had restricted its award only for two
workmen, who had come in the witness box. Remaining workmen had also
made representation to the department ie companies where they had been
transferred to work after unbundling w.e.f. 01/07/2002. The Transco Ltd,
newly formed on 01/07/2002 had challenged the said award by filing a writ
petition no WP ( C ) 8031/03 which had been dismissed by the court vide
order dt 01/03/2005. The Delhi Transco Ltd had also filed a review petition,
which had also been dismissed. Therefore, Delhi Transco Ltd had
implemented said award by making payment to two workmen. Thereafter the
other workmen who had not been paid the wages in terms of the award, had
filed a writ petition in Hon'ble High Court of Delhi for making the payment to
them in terms of the award , however it had also been dismissed vide order
dt 01/12/06 with the directions to the workmen to approach the proper forum.
The workmen had also challenged the order dt 01/2/2006 by filing LPA no.
684 of 2006 but the same had also been dismissed. The Special Leave
Petition filed by the workmen had also been dismissed in Limini vide order dt
11/08/2008. The action of the management in refusing the benefit of higher
pay scale to the remaining workmen was illegal, arbitrary and not according
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to rules. Hence the present statement of claim has been filed by the present
workmen.
3) Written statement has been filed by the management to the claim of
workmen. The management has taken the preliminary objections that
workmen Darshan Kant Colly and O P Sharma were working in the erstwhile
DVB before unbundling as Sr Clerk & had retired from the services as on
31/12/2000 and 31/08/97 after superannuation. They were allowed the
current duty charge for the post of Asstt Accountant, on look after basis along
with other incumbent on 04/01/90 with the clear stipulation that no extra
remuneration will be admissible and paid to them and they will not claim the
benefit of the same for promotion/seniority in the cadre of Assistant
Accountant. This adhoc arrangement purely was made by Erstwhile DVB as
a stop gap arrangement till the post of Assistant Accountant is filled as per
notified R & P Regulations. Therefore some of the employees of Erstwhile
DVB moved the matter before the court for filling up post as per the R & P
Regulations and as per the directions of the court, the post of Assistant
Accountant were filled on regular basis by conducting competitive
examination as provided in R & P Regulations. Both the workmen could not
find place for regular promotion/appointment to the post of Asstt Accountant
as per the competitive examination held. The statement of claim as filed by
workmen is false, frivolous and not maintainable in the present form & is
barred by period of limitation. The erstwhile DVB unbundled into various
entities w.e.f. 01/07/2002 and prior to that both the workmen did not file a
case against the DVB. That after a period of more than 10 years of
unbundling of DVB, the claim petition is highly barred by period of limitation. It
has been submitted by the management that claim be rejected as both the
workmen have never worked with the BSES Rajdhani Power Ltd as BSES
Rajdhani Power Lt came into existence only on 01/07/2002.
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4) Rejoinder was filed by the workmen to the reply filed by the Respondent.
The submissions of the Respondent were denied by the workmen/applicants in their rejoinder and reiterated the facts as mentioned in the statement of claim.
5) Out of the pleadings of the parties following issues were framed by my Ld Predecessor:
(1) Whether the statement of claim is not maintainable on ground of latches/belated stage?OPM (2) As terms of reference.
6) In workmen evidence, from the side of the workmen, WW1 Sh Darshan Kant filed the affidavit Ex.WW1/A and relied upon the documents from mark A to G. WW2 is Shri O.P. Sharma, who has filed his affiavit Ex.WW2/A and he has relied upon the documents from mark A to G. On behalf of management, MW1 Shri R.C. Kataria has filed his affidavit Ex.MW1/A.
7) I have heard final arguments from Ld AR for the parties.
8) On behalf of the workmen, it was argued by Ld A.R for the workmen that vide order dt 04/01/90 post of both workmen, who were working as Senior Clerks were upgraded to Assistant Accountant but they were being given the salary of Senior Clerks only . But the workman Sh O.P. Sharma was promoted to regular cadre of Assistant Accountant in the year 1992 and got the salary from 1992 itself. Whereas workman Darshan Kant Colly was regularized at the post of Assistant Accountant in the year 2000 and got the salary of Assistant Accountant also. It is also submitted by Ld A.R for the workmen that presently the workmen are claiming the salary of Assistant Accountant from the date ie 04/01/90 till they were regularized on the post of Assistant Accountant.
9) In support of his arguments, Ld AR for the workmen has relied upon 5Out of 19 6 the following judgments:
1. II (2017) SLT 753State of Haryana vs Mohinder Singh
2. AIR SC 5176 State of Punjab vs Jagjit Singh and others
3. Award dt 22/01/2015 passed by Sh Anand Swaroop Aggarwal POLC XI KKD and copy of award dt 09/12/2001 passed by Sh P.S. Teji in ID no 71/93.
10) On the other hand, Management has contested the claim of the workmen. Ld A.R for the management had submitted that there is inordinate delay in filing the present dispute, as cause of action has arisen in favour of workmen in the year 1990 when they were posted as Assistant Accountant on the upgraded post of Senior Clerks but no action has been taken by the workmen till 2012. It is further submitted on behalf of the management that earlier some other workmen had filed an industrial dispute before Labour Court, which was decided in the year 2002 in their favour. Despite knowing fully well the order passed by Ld Labour Court in 2002, present workmen have not taken any action in filing any industrial dispute in respect to their salary. It has further been submitted by Ld A.R for the management that there is no explanation submitted by the workmen for this period of delay of more than 2021 years, hence the claim of the workmen is barred by delay and latches, hence it should be dismissed. It has also been submitted by Ld A.R for the management that it has been admitted by both the workmen in their evidence that they were aware of the fact that while accepting the posting as Assistant Accountant that they will be given the salary of Senior Clerks only and not that of the Assistant Accountant, but they still accepted 6Out of 19 7 the same, hence they are barred by estoppel.
11) I have considered the arguments submitted by Ld AR for the parties. I have also gone through the written submissions submitted on behalf of the management, evidence led by the parties, judgments relied upon by Ld AR for the parties and have carefully perused the court record. After considering the same, my issue wise findings are as follows:
ISSUE NO. 1 "Whether the statement of claim is not maintainable on ground of latches/belated stage?OPM
12) It is admitted case of the parties that present workmen were working at the post of Senior Clerks in the erstwhile DVB in the year 1990 and on 04/01/90 they were asked to work against the upgraded post of Assistant Accountant, while they were working as Senior Clerks. It is also admitted by the parties that it was known to the workmen, herein that post of Assistant Accountant will be having the salary of Senior Clerks only and they will not be provided salary of Assistant Accountant. Further it is also admitted by the parties that in April 2000 workman Darshan Kant Colly was regularized in the cadre of Assistant Accountant, whereas workman O.P. Sharma was regularized on the post of Assistant Accountant in the year 1992. It is also admitted fact of the parties that present reference has been made by the Office of Labour Commissioner on 15/04/2013 and as per the case of the workmen, demand notice was sent to management, herein, on 18/05/2011, thus admittedly present dispute has been raised by the present workmen after a period of 2021 years, if counted from the date of demand notice, which has resulted in raising of reference to the Industrial Tribunal in the year 2013 ie after a gap of 2223 years. The question, herein is whether due to this delay of 2021 years, a dispute raised by the workmen has become stale or that it is barred by delay and latches or not.
13) The contention of Ld A.R for the workmen had been that since there is 7Out of 19 8 no limitation period provided in raising the industrial dispute, question of delay does not arise. Secondly it was also argued on behalf of the workmen that earlier in the year 1993 DESU Employees Union had raised a demand for claiming the scale of Assistant Accountant. The said industrial dispute was decided by the then Ld ADJ cum POIT Sh P.S. Teji ( as his Lordship then was) vide order dt 09/12/02 and the relief was granted to two workmen Sh K L Sharma and Shri D.K. Gupta as these were the only workmen, who had appeared in evidence. Therefore, it is clear from the averment of the workmen itself that all 171 employees had filed a case by raising industrial dispute but none of these present workmen had appeared before Ld Industrial Tribunal and therefore, relief was only granted to two workmen.
Hence, I am of the opinion that admittedly the cause of action in raising the present dispute had arisen in favour of the present workmen also in the year 1990, when earlier industrial dispute was raised by the union but they voluntarily chose not to pursue the industrial dispute, thus, by their own act, they have waived of their right to pursue the industrial dispute.
14) On the other hand, management had contested that even though no limitation has been provided in raising industrial dispute but it has to be raised within a reasonable period, otherwise it would be barred by limitation. Other contention of the management has been that since present workmen had accepted their posting of Assistant Accountant knowing fully well that they will not be given the salary of Assistant Accountant hence it is barred by estoppel against them.
15) It is settled preposition of law that no period of limitation has been provided in Industrial Dispute Act for raising the industrial dispute, therefore, the Limitation Act cannot be applied to the provision of Industrial Dispute Act. But simultaneously by way of various decisions of Hon'ble Supreme Court and Hon'ble High Courts, it has been held that dispute must be raised within 8Out of 19 9 the reasonable period of time ie before the dispute becomes stale or cease to exist.
16) In Nedunagadi Bank Ltd vs K.P Madhavankutty and others2000 SCC (L&S) 282 Hon'ble Supreme Court was dealing with the similar matter of delay, when the dispute was raised by the workman against his termination after 7 years. While discussing the relevant provision and application of Limitation Act on Industrial Dispute Act, Hon'ble Supreme Court has held that:
"Law does not prescribe any timelimit for the appropriate Government to exercise its power under section 10 of the Act, it is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject matter of reference under section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made u/s 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from services were reinstated. Under what circumstances they were dismissed and subsequently reinstated is no where mentioned. Demand raised by the respondent for raising an industrial dispute was exfacie bad and incompetent"
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17) Further in Haryana State Coop Land Development Bank vs Neelam (2005) 5 SCC 91Hon'ble Supreme Court has held that:
" It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Dispute Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workmen would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of acceptance sub silentio".
18) Applying these principle, in Ramesh Kumar vs Delhi Jal Board in W.P ( C ) 1034/2011, Hon'ble High Court of Delhi has held that unexplained delay of six and half years in raising industrial dispute by workman disentitle him from any relief by the Industrial Tribunal.
19) Similarly 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 industrial dispute was held to be fatal". 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 Supdt, 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 10Out of 19 11 workman and would disentitle him to any relief".
20) From these judgments,it is clear that although there is no limitation provided in raising industrial dispute but dispute is to be raised within the reasonable stipulated period. Raising of industrial dispute for claiming the wages after a gap of 2021 years cannot be considered to be reasonable period. Specially so, when admittedly workman O.P. Sharma had retired from the services in the year 1997 and workman Darshan Kant Colly had retired from the services on 31/12/2000. During that period, earlier a dispute raised by the union on behalf of all 171 workmen was admittedly pending before Industrial Tribunal but present workmen did not care to join those proceedings, hence it is to be believed that present workman never had any intention of raising industrial dispute against the management. It is also important to consider herein that erstwhile DVB was bifurcated in June 2002 in various companies, one of them being present management. Whereas present workmen had already retired from the services before bifurcation of erstwhile DVB. Despite knowing that erstwhile DVB had been bifurcated into various companies itself, present workmen had not raised any dispute in the year 2002. It shows that even in 2002 workmen had no interest and intention of pursuing the industrial dispute and had thus accepted the posting and salary given to them.
21) In the crossexamination both workmen WW1 and WW2 have clearly admitted that they were aware of the order passed by Ld POIT on 09/12/2002 in favour of other workmen granting the salary of Assistant Accountant but even after knowing this order, they did not make any effort to raise industrial dispute even in the year 2002. This again shows that deliberately, no dispute was raised by the workmen as they were not intending to raise the dispute. In the entire evidence led by the workmen, no 11Out of 19 12 explanation has been tendered by the workmen for not raising the present dispute from 1990 till 2011 and raising the present dispute, all of sudden in the year 2011.
22) On the point of delay, Ld A.R for the workmen has relied upon the judgment of State of Haryana and Another Vs Mohinder Singh and another - II (2017) SLT753. This judgment is not applicable to the facts of the present case, as in this case, the issue was the date from which arrears were to be given to the employees. Whereas in the present case, the claim of the workmen is barred by delay & latches and the question of delay was not considered by Hon'ble Supreme Court in State of Haryana and Another Vs Mohinder Singh and another (Supra). Hence the facts of the present case can be differentiated from the facts of the case before Hon'ble Supreme Court.
23) Similar facts came for disposal before Hon'ble Supreme Court in Civil Appeal No. 9849/2014 titled as State of Uttar Pradesh and ors vs Arvind Kumar Srivastava and others. In that case (before Hon'ble Supreme Court), facts were that the respondents had filed a suit in the court of City Munsif, Varanasi challenging the order of the cancellation of their appointment by new Chief Medical Officer. The suit was registered as Suit No. 695/1987 and the same was dismissed for non prosecution due to non appearance of the respondents, herein. After sometime, few other candidates who were also affected by the same order of cancellation of their appointment approached the Tribunal ie Uttar Pradesh Public Services Tribunal, Lucknow for challenging the legality, validity and proprietary of the said order. The Tribunal passed an order in favour of other candidates vide judgment dt 16/08/91 and held that order of cancellation of appointment was illegal and void. After that, State filed a Writ petition in the Hon'ble High Court of Allahabad. That was also dismissed on August 27, 1992 and confirmed the 12Out of 19 13 order passed by the Tribunal. The order of the Tribunal attained finality after the Special Leave Petition was also dismissed by Hon'ble Supreme Court in the year 1994. Therefore, the persons who had approached the Tribunal got the appointments. The respondents, herein ie Arvind Kumar Srivastava and others, waited for raising any dispute till the dismissal of S.L.P in the year 1994 and thereafter in the year 1995, they challenged the order of the cancellation of their appointment on strength of the judgment of the Tribunal given in the case of other persons, claiming parity. With these facts, matter came up before Hon'ble Supreme Court. Before Hon'ble Supreme Court, the moot question was "whether the claim of the respondents is barred by delay and latches or whether the respondents have been acquiesced in the dispute being fencesitters or not". In the light of these facts, Hon'ble Supreme Court considered various other judgments passed by Hon'ble Supreme Court prior to 2014. Hon'ble Supreme Court specifically considered the judgment of U.P. Jal Nigam and Anr vs Jaswant Singh and Anr (2006) (II) SCC 464, wherein Hon'ble Supreme Court has considered the point of delay in detail.
24) In U.P. Jal Nigam and Anr vs Jaswant Singh and Anr, Hon'ble Supreme Court has observed that:
"When a person who is not vigilant of his rights and acquiesces into the situation, his writ petition cannot be heard after a couple of years on the ground that same relief should be granted to him as was granted to the persons similarly situated who were vigilant about their rights and challenged their retirement".
In that case, Hon'ble Supreme Court also quoted following passage from the Halsbury's Laws of England-
"In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(I) acquiescence on the claimant's part; and 13Out of 19 14
(ii) any change of position that has occurred on the defendant's part.
"Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.
Holding that the respondents had also acquiesced in accepting the retirements, the appeal of U.P.Jal Nigam was allowed with the following reasons:
"In view of the statement of law as summerised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever, it appears that the claimant lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly,it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ 14Out of 19 15 petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?".
Applying these same principle of U.P. Jal Nigam and Anr vs Jaswant Singh and Anr case, Hon'ble Supreme Court has held in Arvind Kumar Srivastava's case that:
"Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
However, this principle is subject to well recognized exceptions in the form of laches and delay as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fencesitters and laches and delays, and/or the acquiescence, would be valid ground to dismiss their claim.
However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with the intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like. On the other hand, if the judgment of the Court was in personam holding that benefit of said judgment shall accrue to the parties 15Out of 19 16 before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence"
25) In view of the judgment passed by Hon'ble Supreme Court in Writ petition No. 9849/2014 i.e. State of Uttar Pradesh vs Arvind Kumar Srivastava & in U.P. Jal Nigam and Anr vs Jaswant Singh and Anr, it is clear that if the judgment is "in rem" passed by the earlier courts, than that will be applicable to the petitioners herein, if that was the intention of the court even after delay. But in case the judgment was not passed "in rem" then the petitioners will not be entitled to claim the relief, if their claim has been raised after a long delay. In the present case in hand, admittedly earlier decision of the Industrial Tribunal dt 09/12/12 granting the relief to Sh K.L. Sharma and D.K. Gupta would not be applicable to the present workmen herein, as it is clear from the judgment of Industrial Tribunal dt 09/12/02 that despite the reference being raised by all the concerned workmen, since only two workmen had given their evidence, the relief was granted to only those two workmen, which makes it clear that order passed by Ld Industrial Tribunal on 09/12/02 was not the judgment in rem but the judgment was in personam. Present workmen are not entitled to any relief claimed by them on the basis of the order passed by Ld Industrial Tribunal on 09/12/02 on the same principle as enumerated by Hon'ble Supreme Court in the case of State of Uttar Pradesh and ors vs Arvind Kumar Srivastava and ors (mentioned above) as the present workmen had been fencesitters while other persons have raised the dispute.
26) Considering the judgments of Nedunagadi Bank Ltd vs K.P 16Out of 19 17 Madhavankutty and others, (2) Ramesh Kumar vs Delhi Jal Board and (3) Haryana State Coop Land Development Bank vs Neelam and (4) State of Uttar Pradesh and ors vs Arvind Kumar Srivastava and ors (mentioned above), I am of the opinion that delay of 2021 years in raising the present dispute has made the dispute stale and the same was not in existence for the workmen, as they did not take any action prior to 2011 for raising the present dispute. Although, one such industrial dispute was already pending to which they were party but they never take any steps to pursue the same, hence issue no. 1 is decided in favour of the management to the effect that the claim of the workman is not maintainable being barred by delay and latches.
ISSUE NO. 2: "In terms of reference".
27) The present Tribunal has to decide "whether the workmen Sh Darshan Kant Colly and Sh O.P. Sharma who had been assigned the work of Assistant Accountant vide order dt 04/01/90 are entitled to the wages of Assistant Accountant and if so to what directions are necessary in this respect.
28) On this issue, Ld A.R for the workmen has relied upon the judgment of State of Punjab and Anr vs Jagjit Singh and othersAIR SC 5176. This judgment is on the point of principle of equal pay for equal work. But I am of the opinion that no relief could be granted to the present workmen on the basis of this principle, as issue no. 1 has been decided against the workmen to the effect that the claim of the workmen is barred by latches; secondly onus to prove this issue was on the workmen . Workmen have not discharged the onus to prove on record that other workmen were getting more salary than the present workmen. Admittedly award passed in the year 17Out of 19 18 2002 by Ld POIT in ID No. 71/93 was already in the knowledge of the workmen itself. Despite that they did not take any action, hence it is proved that they accepted the salary given to them by the department and once they have accepted in silence the action of the management, same cannot be agitated by them again. Hence this judgment is of no help to the present workmen.
29) As regards other two judgments relied upon by Ld A.R for the workmen, same are not binding on the present Tribunal being tribunal of concurrent jurisdiction.
30) Since issue no. 1 has been decided in favour of the management that the claim of the workmen is not maintainable being barred by delay and latches, as same has been raised after 2021 years of the cause of action. Hence, the reference is answered in negative. Award is passed accordingly.
31) Copy of the award be sent to GNCT of Delhi for publication, as per rules. File be consigned to record room.
Announced in the open Court on (SHAIL JAIN) this 10th August, 2018. Presiding Officer,POIT-02 Dwarka Court, New Delhi.
Digitally
signed by
SHAIL SHAIL JAIN
Date:
JAIN 2018.08.10
13:24:57
+0530
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ID No.. 833/16
Darshan Kant Colly vs BSES Rajdhani Power Ltd
10.08.2018
Present: None for the parties.
Vide my separate judgment announced in open court, the reference is answered in negative. Award is passed accordingly.
Copy of the award be sent to GNCT of Delhi for publication, as per rules. File be consigned to record room.
(SHAIL JAIN ) POIT2/SWD/10.08.2018 19Out of 19