Delhi District Court
Sh. Kripal Singh vs M/S P.G.D.A.V. College on 21 September, 2015
IN THE COURT OF SH. RAJEEV BANSAL
PRESIDING OFFICER INDUSTRIAL TRIBUNAL
KARKARDOOMA COURTS, DELHI
I.D. No 28/11
Unique I.D. No.02402C0038102011
Sh. Kripal Singh
S/o Late Sh. Kailash
As represented by
Janvadi General Kamgar Mazdoor Union ( Regd.)
C/o Room No. 95, Barracks No. 1/10,
Jamnagar House, Shahjahan Road,
New Delhi 110011. Workman
Vs.
M/s P.G.D.A.V. College,
Nehru Nagar,
Ring Road, New Delhi65. Management
Date of Institution 02.02.2011
Date of reserving Award 13.08.2015
Date of Award 21.09.2015
Ref : F.24 (304)/Lab./SD/2010/770 dated 20.01.11
A W A R D
1. Govt. of NCT of Delhi Vide Reference No. F.24 (304)/
Lab./SD/2010/770 dated 20.01.2011 sent the present dispute to this
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Tribunal for adjudication in the following terms:
''Whether Sh. Kripal Singh S/o Late Sh. Kailash is
entitled to be regularized w.e.f. 11.5.1996 is so, what
relief is he entitled and what what directions are
necessary in this respect?"
2. Pursuant to the reference, statement of claim has been filed by
Sh. Kripal Singh wherein he has stated that he was initially appointed as
Safai Karamchari w.e.f. 11.5.96 on compassionate ground as daily wager
instead of regular Safai Karamchari. It is stated that his father Late Sh.
Kailash worked with the management w.e.f 01.9.1972 and took voluntary
retirement w.e.f 31.07.1994 due to paralysis. It is stated that his father was
assured by the college that the applicant could be accommodated on
humanitarian ground against the post that would fall vacant. It is stated
that the applicant was appointed as Safai Karamchari on daily wage basis
w.e.f. 11.5.96 and was given temporary status w.e.f. 04.12.1998. It is
stated that vide letter dated 6.8.09, the management informed that due to
ban on appointments w.e.f 31.8.99, he could not be considered for regular
appointment. It is stated that the applicant was appointed on 11.5.1996
whereas the ban was imposed on 31.8.99. It is stated that the managing
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committe of Janvadi General Kamgar Mazdoor Union ( Regd.) sponsored
the cause of the applicant for regularisation of his service. It has been
prayed that the management may be directed to regularise the services of
the workman w.e.f. 11.5.96 with all consequential benefits.
3. The management contested the claim of the workman and stated
that the present dispute has not been espoused by the workmen of the
college and therefore, the same is not an Industrial Dispute u/s 2 (k) of the
Industrial Disputes Act. It is stated that the employees of the college and
University have their own union namely University and College
Karamchari Union and therefore, Janvadi General Kamgar Mazdoor
Union ( Regd.) has no locus standi to raise this dispute. On merits, it has
been stated that the claimant was working on daily wage basis and not on
compassionate ground. Giving any assurance to Sh. Kailash regarding
appointment of his son on humanitarian grounds has been denied. It is
stated that every vacancy is to be advertised and notified to the
Employment Exchange. It is stated that work relating to transportation,
cleanliness and security is to be assigned to private agencies as per UGC
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directives. It is stated that there was only one post of Safai Karamchari in
the college which was held by Sh. Kailash who took voluntary retirement
on 31.7.94. It is stated that the claimant was working on daily wage basis
thereafter. It is stated that the management sought permission from the
University to fill up the post of Safai Karamchari but no permission was
granted and the post was ultimately abolished. It is stated that University
Grants Commission vide its letter dated 31.8.99 imposed ban on filling up
of vacant posts.
4. Vide order dated 08.10.2012 the following issues were framed:
1. Whether present dispute is an Industrial Dispute as defined
in section 2(k) of Industrial Disputes Act? OPW
2. Whether present claim of the workman has been properly
espoused by the Union? OPW
3. As per terms of reference?
5. The applicant Sh. Kripal Singh examined himself as WW1 and
proved his affidavit as Ex.WW1/A. In his cross examination, he admitted
that the college never gave in writing at the time of retirement of his father
that they would appoint his son. He stated that he was member of Janvadi
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General Kamgar Mazdoor Union ( Regd.) since a long time.
6. Sh. B.K.Prasad President of Janvadi General Kamgar Mazdoor
Union ( Regd.) examined himself as WW2 and proved his affidavit as
ExWW2/A.
7. No other witness was examined on behalf of workman and
workman evidence was closed.
8. On behalf of the management, Sh. P.N.Tiwari deposed as MW1
and proved his affidavit as Ex.MW1/A. In his cross examination he has
stated that the claimant was appointed on humanitarian grounds. He stated
that the claimant was not appointed on regular basis because of ban
imposed by University Grants Commission in this regard.
9. No other witness was examined on behalf of the management and
the management evidence was closed.
10. Ld. AR for the workman has argued that the applicant was
appointed on humanitarian ground by the management after the father of
the claimant had sought Voluntary Retirement due to ill health. He has
stated that the management instead of appointing the claimant on
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compassionate ground on regular basis on 11.5.96, appointed him on daily
wage basis as Safai Karamchari on the same post which was held by his
father. He has stated that subsequently the claimant was granted temporary
status also by the management and his case was also put up to the
authorities for his regular appointment but the University Grants
Commission did not give permission to appoint him on regular basis, on
the ground that a ban has been imposed by the Govt. He argued that the
claimant was initially engaged on 11.5.96 and was given temporary status
on 4.12.98 and by that time there was no ban on regularisation of
appointment as the said ban came to be imposed only after 31.08.99. He
has stated that initial engagement of the claimant was actually on
compassionate basis as there is no other mode of appointment in the
management but only to deny the benefits to the claimant, the
management engaged him on daily wage basis. He relied upon the
Judgment of Hon'ble Delhi High Court in the case of MCD Vs. Sh.
Rajesh decided on 09.11.2009 in WPC No. 12996/09 wherein directions
were given to the management to treat the workman as appointed on
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regular basis with effect from the date of his initial appointment on
compassionate basis.
11. Per contra, Ld. counsel for the management has argued that the
management has its own union and the present dispute, having been raised
by the claimant through some other union than the union of the
management, is not maintainable. He argued that the claimant was not
appointed on compassionate ground as his case is not covered by the
scheme of compassionate appointment. He stated that on humanitarian
ground the claimant was engaged as daily wager but before his services
could be regularised, a ban was imposed on regular appointment by
University Grants Commission and they have further directed that the
work being performed by the claimant, be outsourced. He argued that the
post of Safai Karamchari has been abolished and therefore, for want of
post, no directions for regularisation of the services of the claimant may
be given.
12. I have heard both the sides and have perused the records. My
issue wise findings are as under:
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13. Issue No. 1 and 2
Issue no.1 is : Whether present dispute is an Industrial Dispute
as defined in section 2(k) of Industrial Disputes Act?
OPW
Issue No.2 is: Whether present claim of the workman has been
properly espoused by the Union? OPW
14. These issues are interconnected and are being decided together.
The case of the claimant is that he is member of Janvadi General Kamgar
Mazdoor Union ( Regd.) since a long time. WW2 Sh. B.K.Prasad
deposed that the workman became member of their union as Delhi
University Karamchari Union was not representing the claimant. The
espousal letter has been proved as Ex.WW2/3 and certificate of the Trade
Union representation has been proved as Ex. WW2/4.
15. Objection of the management is that employees of the college and
University have their own union namely University and College
Karamchari Union and therefore, Janvadi General Kamgar Mazdoor
Union ( Regd.) has no locus standi to raise this dispute. Perusal of the
record shows that name of Janvadi General Kamgar Mazdoor Union has
been specifically mentioned in the reference order, which shows that the
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said union has been pursuing the case of the claimant since the stage of
conciliation proceedings. Ex.WW2/3 is the espousal letter of Janvadi
General Kamgar Mazdoor Union. Hence, it is held that the said union has
locus standi to raise the present dispute and the cause of the claimant is
properly espoused by the said union and thus, the present dispute is an
Industrial dispute as defined under Section 2 (k) of Industrial Disputes
Act. Accordingly, both the issues are decided in favour of the claimant
and against the management.
16. Findings of Issue No. 3
Issue no.3 is :'As per terms of reference'. Terms of reference are as
under:
''Whether Sh. Kripal Singh S/o Late Sh. Kailash is entitled to be
regularised w.e.f. 11.5.1996 is so, What relief is he entitled and
what what directions are necessary in this respect?"
17. In other words, this Tribunal has been called upon to decide as to
whether the claimant is entitled for being regularised w.e.f. his initial date
of engagement i.e 11.5.96.
18. It has not been disputed that the father of the claimant was
working as regular Safai Karamchari with the management from 01.9.72
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till 31.7.94 when he sought Voluntary Retirement. It is also not disputed
that the claimant was engaged as daily wage Safai Karamchari w.e.f.
11.5.98. It is also not in dispute that the claimant was granted temporary
status w.e.f. 4.12.98. There is no dispute that there was only one post of
Safai Karamchari which was held by father of the claimant till 31.7.94
and thereafter, no person was appointed to the said post by the
management on regular basis. It is not disputed that the claimant was
engaged as daily wage Safai Karamchari on humanitarian ground. The
case of the management is that before the services of the claimant could be
regularised, a ban on regular appointments was imposed by University
Grants Commission w.e.f. 31.8.99. The question which now arises for
consideration is as to whether in such circumstances, the claimant can
stake any claim for regularisation of his services. The management could
not fill up the vacant post of Safai Karamchari from 1994 till 31.8.99 for
the reasons best known to them. The fact remains that the claimant has
been working as daily wage Safai Karamchari from 11.5.96 onwards and
he was also granted temporary status w.e.f 04.12.98. A ban on regular
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appointments came to be imposed only w.e.f. 31.8.99 and no fault can be
imputed on the claimant in this regard for the non filling of this post by the
Management before the imposition of ban on 31.8.99. Clearly, the inaction
is on the part of the management and the claimant cannot be made to
suffer on account of lapses on the part of the management. The Hon'ble
Delhi High Court in case of Rajesh (supra) held as under:
1. The MCD in this writ petition seeks to
challenge an industrial award dated 12.05.2008 in I.D.No.
37/2008 directing it to treat the respondent as appointed in
the regular pay scale with effect from the date of his initial appointment, i.e 31.03.2003 and grant him all consequential benefits.
26 ..........
7. On being repeatedly asked, the learned counsel appearing on behalf of the petitioner, could not show that the rules for appointment on compassionate grounds provide for appointment on daily wage basis. Once the petitioner had appointed the respondent on compassionate grounds it amounts to an admission on the part of the petitioner that the respondent was entitled for compassionate appointment. Compassionate appointment could have been made only on regular basis and not on daily wage basis.
8. It shall be significant to mention that the witness of the petitioner itself namely WW1 Surinder Singh has admitted two important facts in his cross examination, one that the appointment of the respondent vide appointment letter ( Exhibit WW1/2) was against a vacant post and the second admission made by him is that the respondent all along had been discharging the similar nature of work as discharged by his deceased father and he I.D. No. 28/11 Kripal Singh Vs. M/s P.G.D.A.V. College Page 11 of 13 posses the same qualification as possessed by his deceased father.
9. Under the circumstances, I do not find any illegality or perversity in the impugned order holding that the respondent is entitled to be treated as regular employee with effect from the date of his initial appointment, i.e 31.03.2003. This writ petition, therefore, fails and is hereby dismissed in limine. The Stay application is also dismissed.
19. ExWW1/2 is a letter issued by the management to the University Grants Commission on 06.08.09 by which they have themselves requested UGC for regularisation of the services of the claimant stating therein that the claimant had worked for more than 11 years and he was appointed on humanitarian grounds in place of his father.
20. The argument that the work which was being discharged by the claimant has now been outsourced, cannot come in the way of regularisation of the claimant as it is not disputed that the said ban has been imposed only w.e.f. 31.8.99 and before that, vacancy and work both existed with the management and the said work was being performed by the claimant himself. The claimant has still been working with the management. No evidence has been produced by the management that they have outsourced the work being earlier performed by the claimant. It I.D. No. 28/11 Kripal Singh Vs. M/s P.G.D.A.V. College Page 12 of 13 is not the case of the management that they do not have any work for the claimant. Since no fault can be imputed on the claimant in the present case as the inaction is on the part of the management, the claimant cannot be deprived of the benefit of regularisation of his services. The claimant was granted temporary status w.e.f. 4.12.98. The vacancy of Safai Karamchari existed with the management before the imposition of ban on 31.8.99. In these circumstances, it is held that the claimant is entitled to be regularised with effect from the date by which temporary status was conferred on him.
The management shall get the post of Safai Karamchari revived, if it has already been abolished. He shall be entitled of all consequential benefits flowing from it. Reference is answered in these terms and Award is passed accordingly.
21. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open Tribunal
on 21.09.2015 (RAJEEV BANSAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
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