Delhi District Court
) Workman Has Raised The Present Dispute ... vs Dhaaram Singh on 9 August, 2018
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IN THE COURT OF MS SHAIL JAIN, PRESIDING OFFICER, INUDSTRIAL
TRIBUNAL02, DWARKA COURTS, NEW DELHI
ID No. 864/16
Sh. Chander Mohan Sharma
represented by Indira Gandhi Centre
for Arts United Welfare Worker union
c/o Room No 95, Barracks No 1/10, Jam Nagar House, Shahjahan Road
New Delhi.
Workman
Vs
Management of Indira Gandhi National Centre for Arts United Welfare
through its Member Secretary, Central Vista Mess Building
Janpath, New Delhi.
Date of Institution: 10/09/2009
Date of Order:.09/08/2018
O R D E R
1) Workman has raised the present dispute and on failure of
conciliation proceedings, GNCT of Delhi referred the dispute to this
Tribunal for adjudication in the following term of reference
"Whether Sh. Chander Mohan Sharma son
of Shri Bisham Pithah is entitled to the pay
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scales of Rs.650020010,500/ under ACP
scheme being a promotional post from
stenographer grade 'D' to stenographer
grade 'C' and if so what directions are
necessary in this respect?"
2) Statement of claim was filed on behalf of the workman. In the
statement of claim, workman has stated that he was initially appointed
as LDC on temporary basis w.e.f 23/12/91 and posted under Building
Project committee of the management. It is the claim of the workman
that Building Project Committee was one division of IGNCA like other
divisions Sutardhara, Kala Nidhi, Kala Kosa etc and the Indira Gandhi
National Centre for the Arts (herein after referred as IGNCA) is fully
automomous Trust established by the Govt of India, Ministry of Human
Resources Development. It is the claim of the workman that
management created a post of stenographer in Grade 'D' in
management and asked Employment officer Employment Exchange to
provide the list of suitable candidates. Workman applied for the
aforesaid post being departmental candidate. Employment Exchange
sponsored a list of 12 candidate for the aforesaid post. Out of 13
candidates, only present workman qualified the shorthand and type
test and he was appointed as stenographer grade 'D' in the pay scale of
Rs.12002040 in BPC Secretariat against the vacancy. After
completion of Building project committee the services of workman were
transferred from BPC to Administration/Pool of IGNCA. After the
appointment as stenographer grade 'D', w.e.f. 14/08/96, workman has
been delinked from the post of LDC. The services of workman have to
be counted for ACP w.e.f. 14/08/96 and he is entitled for the first ACP
w.e.f. 13/08/2006. The management has adopted the rules and
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regulations, promotion policy including ACP scheme for grant of next
promotion with some modification as per the instructions issued by
DOPT vide its order dt 9/08/1999. The management is fully
autonomous Trust established by the Govt of India, Ministry of Human
Resources Development. The management has passed a resolution in
its Board meeting that ACP to the employee of IGNCA will be granted
after completion of 10 years of service. Pursuant to the said decision,
workman is entitled to be granted ACP after completion of 10 years
w.e.f. 13/08/2006 in the next grade ie stenographer grade "C" in the pay
scale of Rs.650020010500/. Similarly situated persons and many
others working in IGNCA were also granted the next higher promotion
as provided under ACP scheme after completion of 12 years but the
management subsequently adopted a resolution to grant ACP after
completion of 10 years. After raising this dispute before the Conciliation
Officer, the management got annoyed against the workman and
terminated his services w.e.f. 18/02/2009 without taking prior
permission from the appropriate authority, where the dispute is pending
for reference and the action of the management is violative of section
33 of ID Act. The termination of the workman in violation of section 33
of ID Act is inoperative and the workman has to be treated in services.
Hence, present statement of claim has been filed by workman.
3) Management has filed the written statement wherein they have
taken the preliminary objection that present claim is liable to be
dismissed in view of the fact that the alleged ACP scheme is applicable
only for the regular employees, that too subject to approval by the
Competent Authority of IGNCA whereas the claimant has never been
the regular employee of the IGNCA. The issue of ACP cannot even be
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entertained before this Tribunal for want of jurisdiction as the same can
be entertained only by Hon'ble High Court or CAT being an issue
related with the terms and conditions of the civil post. The present claim
is liable to be dismissed in view of the fact that under the garb of
present claim, the claimant is trying to project himself as a regular
employee of IGNCA, which is not permissible under the law. Present
petition is liable to be dismissed on the ground that neither the claimant
is workman nor the respondent is industry within the meaning of
Industrial Dispute Act. On merits, it has been submitted by the management that claimant was never selected by IGNCA, hence question of claimant having allegedly working for respondent does not arise. From the documents placed on record by the workman himself, it is clear that claimant was engaged on temporary basis by the Building Project Committee (in short BPC), which in itself was a temporary body constituted only for the specific temporary project under a plan scheme relating to the construction of the building of IGNCA. The said BPC was thereafter ceased to be inexistence due to the lack of the work and funds as the work was transferred to CPWD. No specific rules and regulations were ever framed for the recruitment of the employees of BPC. However said BPC used to requisition the staff for temporary works from the Employment Exchange and on each and every occasion, when such requisition were sent to the Employment Exchange, the department used to clearly indicate in writing that the concerned post/works were temporary in nature and all the candidates used to apply for the said temporary posts knowing fully well that the posts and works were temporary in nature. As far as the recruitment process in IGNCA is concerned, it is submitted that there has been 5 specific rules and regulations for conducting the recruitment process of the employees on regular basis and that no recruitment could have been done without advertising the vacancies for conducting the recruitment process for the regular employees. In the present case, no advertisement was given for general public for conducting any recruitment process on regular basis and on the contrary from the documents sent to Employment Exchange, it is clear that names of the persons were requisitioned for temporary post only by and for BPC only. The construction of the building project came to halt because of lack of allocation of funds. The construction work of the IGNCA building was thereafter given to CPWD. It has been submitted on behalf of the management that the claimant was never engaged as regular candidate in IGNCA, hence he is not entitled for ACP scheme which is available for regular employees of IGNCA. The claimant was given promotion pursuant to the fact that he qualified test, which was held in the terms of the letter dt 07/03/1996 and said letter does not show that claimant was appointed in IGNCA. With these grounds, it has been prayed by the management that the claim of the workman be dismissed.
4) Rejoinder to the written statement filed by the workman wherein he has controverted all the allegations levelled by the management on the workman, in the written statement filed by Management.
5) On 16.04.2010, following issues were framed by my Ld Predecessor:
1) Whether the claimant is workman and the management is an industry as defined under I.D Act? OPM.
2) As per terms of reference.
6) After framing of issues, workman has led his evidence and in 6 support of his case workman himself has appeared as WW1 and has tendered his affidavit in evidence as Ex WW1/A. Workman has also relied upon documents Ex. WW1/1 to Ex WW1/3.
7) From the side of management, MW1 Sh Bijender has tendered his affidavit as Ex.MW1/A and has relied upon the documents from Ex.MW1/1 to Ex.MW1/6. He has also relied upon the documents Ex.WW1/M1 to Ex.WW1/M4.
8) I have heard arguments from Ld. AR for the parties.
9) On behalf of the workman, Sh Abhinav Kumar, Ld AR for the workman has argued the matter. It was submitted by Ld A.R for the workman that facts mentioned by the workman in his claim, has not been specifically denied by the management. The only objection taken by the management is that workman was not the employee of Indira Gandhi National Centre of Arts (herein after referred as IGNCA) but was admittedly the temporary employee of the Building Project Committee (in short BPC). Ld AR for the workman has submitted that the document Ex.WW1/2 is the transfer order of the workman, by which he has been taken to Administration Pool and even in the cross examination, Management Witness has admitted that workman was appointed as Stenographer GradeD since 1996, therefore the workman is entitled to the relief of ACP claimed by him.
10) In support of his contentions, Ld A.R for the workman has relied upon the following authorities:
1) Civil Appeal No. 787/66 State of Punjab vs Dhaaram Singh
2) Civil Appeal No. 2633 of 1992 Chief General Manager, State Bank of India and others vs Bijoy Kumar Mishra.
3) LPA No 17/2018 J.A.J Vasu Sena vs Durgabai Deshmukh 7 Memorial Sr. Sec. School and ors.
11) On behalf of the management, Sh A.K. Mishra, Ld AR has argued the matter. It has been submitted by Ld A.R for the management that in the present reference, claim of the workman regarding the ACP is to be determined but the ACP is granted to the regular employees and since the workman was never regularized, therefore, he is not entitled to claim the relief of ACP. It was further submitted on behalf of the management that workman has already been terminated in the year 2009 for which another matter is pending before Hon'ble High Court of Delhi. It has further been argued by Ld A.R for the workman that document Ex.WW1/M1 shows that the post of LDC was temporary. He was not regularized, as is clear from the testimony of workman, therefore, he is not entitled to ACP. It is therefore prayed by Ld AR for the management that the claim of the workman be rejected.
12) I have considered the submissions of Ld. AR for the parties, evidence led by the parties and the material available on record and the relevant provisions of law.
13) After considering the same, my issue wise findings is as follows: Issue no. 1 Whether the claimant is workman and the management is an industry as defined under I.D Act? OPM
14) This issue was framed on the basis of the pleadings of the parties but neither the workman nor the management has led any evidence in respect to prove that the management is not an industry or that the workman, herein, is not the workman as per the definition provided in section 2 (s) of the Industrial Dispute Act. Onus to prove this issue was on the management and since the management has not led any 8 evidence nor advanced any arguments on this issue. Therefore the issue is decided as not pressed by the management. ISSUE NO. 2: As per terms of reference.
15) As per the reference, workman is claiming the relief of ACP on the grounds that he was posted as Stenographer GradeD in the year 1996 and as per rules of IGNCA, he was entitled to first ACP after completion of 10 years i.e. in the year 2006 he should have been granted first ACP, which was not granted to him by the management rather his services were terminated in the year 2009 illegally by the management, for which the matter has already taken up by the workman before appropriate Forum.
16) Management has contested the claim of the workman mainly on two grounds; firstly that workman is not the employee of IGNCA but was the employee of the BPC; secondly the workman was temporary employee as the BPC itself was temporarily constituted, only for the construction of the building, which could not be completed by the BPC, therefore, the workman has no right to claim ACP, as he was never the regular employee of IGNCA. The claim of the workman is that BPC was a part of IGNCA. The workman was appointed in the year 1991 as LDC.
In the year 1996, the management called the names from Employment Exchange for the post of Stenographer GradeD and workman, herein, was the departmental candidate. After qualifying the exam, he was declared as successful and thereafter was posted as Stenographer GradeD in the management. The claim of the workman is that since he was posted as Stenographer GradeD in the year 1996 and worked as such till 2009 when he was removed from the services, therefore, he is entitled to get first ACP in the year 2006 as per the policy of the 9 management.
17) In order to decide the reference, this Tribunal has to decide whether the workman was working as regular employee with the management or not. The management has stated that workman was not promoted or posted at the post of Stenographer GradeD, because as per the Recruitment Rules Ex.MW1/W6 for the post of Stenographer Grade D, it is the post of appointment and not promotional post, whereas the letter dated 14/08/96 which is Ex.WW1/1 states that workman has been promoted to the post of Stenographer GradeD. The contention of the management, thus, is that since letter Ex.WW1/1 says that workman was promoted to the post of Stenographer GradeD but the post of stenographer was not promotional post, rather it was the "appointment post", hence he was not posted as Stenographer GradeD. The other contention of management is that he was posted as Stenographer GradeD against temporary vacancy, as is clear from the document Ex.WW1/M1, which shows that the "temporary" post of Stenographer GradeD was advertised.
18) After considering the contentions of the management, claim of the workman and the documents placed on record, I am of the opinion that management is not clear about their position. On one hand, management has denied that workman was ever promoted or posted as Stenographer GradeD but simultaneously, they have admitted that post, against which he was posted, was temporary post, as per advertisement. Contrary to this, MW1 Shri Bijender has admitted in cross examination dt 19/11/14 that workman was governed with the rules applicable to the employees of IGNCA, while he was in the 10 services of the management ie IGNCA. Thus, statement of MW1 Sh Bijender clearly shows that workman was employed with IGNCA and the objection of the management that workman was not the employee of IGNCA , is baseless and incorrect. Further, in the cross examination dt 19/11/14, it has also been admitted by MW1 that workman was promoted to the post of Stenographer GradeD. The Service Book of the workman has been proved in cross examination of MW1 as EX.MW1/W11. From the document ie Service Book, it is clear that workman was posted to the post of Stenographer GradeD in the pay scales of Rs.1200301560EB402040 in the year 1996. Once the document of management, itself admits and states that the workman was promoted to the post of Stenographer GradeD, management cannot be allowed to contradict this position by saying that post of Stenographer GradeD was not a promotional post or that workman was not posted to the post of Stenographer GradeD. The document Ex.WW1/1 and document Ex.MW1/W11 ie Service Book of the workman clearly shows that workman was promoted & posted at the post of Stenographer GradeD vide letter dt 14/08/96 against existing vacancy from the date of joining of new post. Since the document Ex.WW1/1 clearly says that workman has been promoted against the existing vacancy, it cannot be said that workman was working on temporary post or was not a regular employee of the management.
19) It is also clear from the other documents placed on record ie Ex.MW1/W1, which is Form16 of the workman, Ex.MW1/W9 is the Certificate, which shows that workman has not availed the LTC for the year 20082009 and document Ex.MW1/W8 ie letter for sanction of Rs.19,000/ from CPF Account No. 315 for workman for purchase of 11 T.V. that workman was working as Stenographer GradeD. All these documents show that workman was working with the management and has been working on the post of Stenographer GradeD since the year 1996. No suggestion has been given by the management to the workman that he was not working at the post of Stenographer GradeD. Even otherwise, once it is admitted by the Management witness that the workman was working at the post of Stenographer GradeD and was subjected to same rules as applicable to employees of IGNCA, objection raised by the management becomes meaningless.
20) The management has failed to prove that post against which the workman was working, was temporary post. Document Ex.WW1/1 contradicts the claim of management.
21) Admittedly there was two years of probation prescribed for the post of Stenographer GradeD, as per the rules of Recruitment of Stenographer GradeD as per Ex.MW1/W6. Since the probation period of workman was never extended as neither it is the case of the management nor any document has been placed or proved on record by the management in this regard, therefore, it is to be assumed that probation period of the workman was completed successfully after two years, hence he was regularized after completion of two years of probation. Therefore, as per the policy of IGNCA, workman had become entitled to ACP, as the same was to be given after 10 years of service as was modified in the case of the management.
22) In the LAP No 17/2018 titled as J.A.J. Vasu Sena vs Durgabai Deshmukh Memorial Sr Sec School and ors - Hon'ble High Court of Delhi has considered the decision of Hon'ble Supreme Court in case High Court of M.P through Registrar and Ors vs Satya Narayan 12 Jhavar reported as (2001) 7 SCC 161, where Hon'ble Supreme Court had observed that:
" (11) The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subjectmatter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point; one line of case is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases, there is no bar against termination at any point of time after expiry of the period of probation. The other line of case is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The interference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation, in case before its expiry the order of termination has not been passed. The last line of cases is where, through under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
After considering the same, Hon'ble High Court of Delhi has come to the conclusion that " We are, therefore, of the view that where the letter of appointment, read in conjunction with the above Rules, fixes a maximum period of two years of probation and 13 where the appellant was permitted to continue in the same post, beyond that maximum period, the same would amount to a deemed confirmation on behalf of the society".
23) The facts of J.A.J Vasu Sena's case (mentioned above) is directly applicable to the facts of present case in hand, as in the present case as per document Ex.MW1/W6, maximum period of probation is two years for the post of Stenographer GradeD. Therefore after two years, when no confirmation letter was given to the workman but he continued to work as Stenographer GradeD, it is to be presumed that after completion of two years at the post of Stenographer GradeD, he was confirmed at such post. Thus after completion of 10 years of services in post of stenographer GradeD, he has become entitled to the ACP in the year 2006.
24) In view of this, the reference is, thus, answered in affirmative with the directions to the management to grant first ACP to the workman from the year 2006 till the date of his termination with all consequential benefits.
25) Copy of this award be sent to GNCT of Delhi for publication.
26) File be consigned to record room. Announced in the open Court on (SHAIL JAIN)
this 9th of August, , 2018. Presiding Officer,POIT02 Dwarka Court, New Delhi.
Digitally signed SHAIL by SHAIL JAIN
Date:
JAIN 2018.08.10
16:04:08
+0530
14
ID No.. 864/16
Chander Mohan Sharma vs Indira Gandhi National Centre of Arts 09.08.2018 Present: Proxy AR for the parties.
Vide my separate judgment announced in open court, the reference is answered in affirmative with the directions to the management to grant first ACP to the workman from the year 2006 till the date of its termination with all consequential benefits.
Copy of this award be sent to GNCT of Delhi for publication. File be consigned to record room.
(SHAIL JAIN ) POIT2/SWD/09.08.2018