Delhi District Court
Industrial Dispute Between : vs (1) The Cmd Of Dtc on 14 September, 2020
Page 1 of 32
IN THE COURT OF Ms. VEENA RANI : POLC
PRESIDING OFFICER LABOUR COURT ROUSE AVENUE COURTS, NEW
DELHI
LCA No. 711/2016
INDUSTRIAL DISPUTE BETWEEN :
Shri Inder Singh ( Driver)
Batch Number8747, P.T. No:25407,
C/o Sh. Ram Sewak, B218, First Floor,
West Patel Nagar, New Delhi110008 .....Workman
VERSUS
(1) The CMD of DTC, I.P. Estate
New Delhi110002
(2) The Depot Manager,
Keshopur Depot,
New Delhi110018 .....Managements
Date of Institution :30012015
Date of Final Arguments :10022020
Date of Award :14092020
ORDER
1) This order will dispose of the application under section 33-C(2) of the Industrial Dispute Act. 1947, moved by the workman against the managements-herein.
VERSION OF THE CLAIMANT AS PER THE CLAIM:
2) The case of the workman is that he was employed by the managements as a driver in the year 1979, however, thereafter, with the malafide intention on the basis of re-Page 2 of 32
medical examination declared him medically unfit for the post of driver and prematurely retired him on 09-01-1992. At that time his basis pay was Rs.1330/- per month in accordance to the annual increments dated 01-04-1991, in the IV Pay scale of 975-25-1150-30-1660.
3) the workman approached before the Conciliation Officer against his illegal premature retirement by the managements on 09-01-1992, thereafter, his case was referred to the Labour Court and Labour Court had passed an award dated 12-11- 2003 in his favour with the directions to the managements to reinstate the workman with the continuity of service along with full back wages and all benefits and to post him on suitable post on same scale and rank.
4) The management had filed WP(C) No:1387/2005 against the Award and the Hon'ble High Court was pleased to stay the Award. However, workman's application under Section 17 B of Industrial Dispute Act was allowed by the Hon'ble High Court and the managements handed over a cheque No:376709 dt. 24-09-2010 amounting to Rs.1,10,145/- drawn on Syndicate Bank, IP Estate Branch, New Delhi towards the 17 B wages. In the due course the said writ petition of the management was dismissed by the Hon'ble High Court with the cost of Rs.15000/- and reaffirmed the reliefs granted by the Labour Court to the workman.
5) As per the claim, the counsel for the workman Dasti was served the certified copy of the above order of Hon'ble High Court upon the management along with legal notice dt. 29-05-2012 for the necessary compliance or orders but the management neither allowed the workman to join his duty nor paid the sum of Rs.33,97,384/- amounts towards full back wages with Page 3 of 32 consequential services benefits consisting of full back wages amounts of Rs.28,20,239/-, leave encashment for a sum of Rs.2,08,141/-, gazetted holidays compensation for a sum of Rs.2,50,504/-, bonus w.e.f. 09-01-1992 to 31-12-203 at the rate of Rs.2500/- per year for a sum of Rs.30,000/-, bonus w.e.f. 01-01-2004 to 31-12-2012 @ Rs.3500/- per year for a sum of Rs.31500/-, cost of livery items @ Rs.2000/- per year i.e. for 21 years for a sum of Rs.42000/- and cost of the writ petition imposed by the Hon'ble High Court on the managements for a sum of Rs.15,000/-.
6) It is further stated that the managements did not obey the Hon'ble High Court judgment dated 02-02-2012 but had intentionally again retired the workman vide its letter dated 15- 10-2012. Due to that reason, the workman has filed Contempt Case(C) No:60/2013, in the Hon'ble High Court and in view of the said case, on 15-05-2013, the managements had handed over some wages cheque No:532038 dt. 20-05-2013 for Rs.10,48,274/-, costs through cheque No:533002 dt. 06-05- 2013 for Rs.15000/- and a cheque No:532926 dt. 7-05-2013 for Rs.91,507/- as some of gratuity. The managements had adjusted the amounts of 17B wages amounts of Rs.1,10,145/- paid to the workman during the pendency of WP(C) No:1387/2005 before the Hon'ble High Court despite the settled law that amounts of 17B of ID Act is not refundable.
7) It is contended by workman that in view of the above mentioned facts some wages of Rs.10,48,272/- and cost of Rs.15000/- paid by managements to the workman, if adjusted from Rs.33,97,384/- then payable amount of Rs.23,34,110/- and 17B amounts of Rs.1,10,145/-, which was wrongly adjusted by the managements, thereafter, now the managements is still liable to pay a sum of Rs.24,44,245/- to the workman. Hence, Page 4 of 32 the present application. Workman prayed accordingly that this amounts of Rs.24,44,245/- be determined and allowed in his favour.
VERSION OF THE MANAGEMENT AS PER THE WRITTEN STATEMENT:
8) The Managements filed reply to the above application of the workman and it is replied by the managements that Medical Board conducted the medical check of workman and the Medical Board vide its report No: HQ/MO/644 dt. 25-07-1991, declared the workman unfit on account of 'amputated distal phalanx of right ring finger', however, as per directions issued by Administrative Officer (PLD) vide Memo No: PLD-
III/Dr./91/33760 dated 07-08-1991 for Re-visual Test along with the previous medical examination report of M.O. DTC dated 25- 07-1991 the same was returned back with the comments that there is no need for re-visual test into the matter as the workman have already been declared permanently unfit. Accordingly, the workman was retired prematurely on medical ground vide letter dt. 09-01-1992. As per record the last basic pay of workman was Rs.1330/- w.e.f. 01-05-1991, instead of 01- 04-1991 in the pay scale of Rs.975-25-115-30-1660.
9) It is stated by the management that award passed by Labour Court dt. 12-11-2003 is matter of record, however, the management had filed W.P.(C) No:1387/2005 against the said Labour Court Award and Hon'ble High Court stayed the said Labour Court Award, however, during the pendency of said appeal the workman filed an application for the payment in terms of 17B wages and Hon'ble High Court passed inter order Page 5 of 32 dt. 07-05-2008 and directed the DTC to pay to the workman last drawn wages or the minimum wages till 15-07-2008 within a period of two months but the DTC was not liable to pay the wages to the workman after 15-07-2008 which is the date of superannuation of the workman and the said amount was to be paid to workman subject to the workman furnishing an undertaking that in case petition succeeds in the matter he would refund the difference between the minimum wages and last drawn wages. Thereafter, the workman filed a Contempt Petition before the Hon'ble High Court, while the managements had already got prepared the cheque in terms of 17B wages, the workman had not filed the undertaking till that date.
10) It is further stated that as per the interim order dt. 20-08- 2009, the workman had to file first an undertaking in terms of the order dt. 07-05-2008 before the workman could get the payment in terms of said order. It is submitted that after filing of an undertaking by workman on 28-08-2009 before Hon'ble High Court a cheque No:376709 dt. 24-09-2010 amounting to Rs.1,10,145/- in terms of 17B up to the date of 15-07-2008 was issued and received by workman. However, the appeal of the managements was dismissed by the Hon'ble HIgh Court vide order dt. 02-02-2012 with cost of Rs.15000/-
11) The Managements further submitted that in compliance of order of Hon'ble High Court a registered letter was sent to the residential address of the workman on 09-03-2012, 19-03- 2012, 10-04-2012 directing him to collect the cheque from the unit and to submit the copy of Pan Card to deal with the payment but workman failed to do so. The workman concerned had already completed the age of superannuation Page 6 of 32 on 05-07-2008, so the question of not allowing him to join the duty does not arise. In regard to making the payment of Rs.33,97,314/- on account of full back wages, the DTC management in compliance court order dated 02-02-2012, had paid to workman a sum of Rs.15000/- towards costs, Rs.10,48,274/- on account of back wages and Rs.91,507/- on account of gratuity (after adjusted Rs.10,4405/-, already drawn gratuity Rs.14431.15/- plus interest Rs.86673.85p).
12) As per the WS, the management has averred that that the workman-herein is not entitled to any of the following benefits:
i) washing allowance because he had not performed the duty during the said period;
ii) benefits of increment from 1st April, 1991 because before the premature retirement his date of increment was 1st May, 1991;
iii) benefits of 1st ACP w.e.f. 1st August and 2nd ACP w.e.f. February, 2005, as the benefits of ACP is given to those employee who have last 3 years ACR and past record are clear in service which needs to be considered by the Department Promotion Committee as per rules as to whether an employee is entitled for the same or not;
iv) Medical Treatment at the rate of Rs.100/- per month as an employee has to submit Doctor's prescription and Chemist bills etc. and without the same the medical claim is not admissible;
v) leave encashment as an employee has to work and earn Earned Leave after physical presence of 24 days after which the employee is entitled to one day leave;
vi) Bonus & Gazetted Holidays (the management-herein submitted that Section 2(rr) of the Industrial Dispute Act 1947 defines the "Wages"
Bonus as such is not payable, the same has been decided in the case reported as 1990 (2) SCC 314.
Page 7 of 32vii) Allowance of Uniform etc. as without uniform duty, employee is not entitled for the benefits of livery items.
13) The Management further stated that the workman-herein is not entitled to Rs.33,97,314/- on account of back wags as the same has been sought up to age of 60 years whereas the said age limit is 55 years as per Office Order No:99 dated 04- 07/10-63 the workman stood retired on 02-02-2012. Extension was possible only after the Medical Examination.
14) In the rejoinder the claimant has reiterated the averments of his claim and denied the version of the management-WS.
15) From the pleadings of the parties the following issue were framed on 06-04-2016:-
(1) To what amount, if any, the claimant is entitled to recover from the management? OPW EVIDENCE OF WORKMAN:
16) The workman has examined himself as WW1 and filed his evidence by way of affidavit which is Ex.WW1/1 and he relief upon the documents :
i) Ex.WW-1/1: Copy of the AWARD dated 12.11.2003 passed by the Labour Court in favour of the workman-herein;
ii) Ex.WW-1/2: Copy of the Order dated 02.02.2012 of the Hon'ble High Court affirming the AWARD (passed by the Labour Court);
iii) Ex.WW-1/3: The copy of the notice for compliance of the orders (which was served Dasti by the counsel of the workman-herein);
iv) Ex.WW-1/4: Calculation of the workman-herein;
v) Ex.WW-1/5: Calculation of the workman-herein;Page 8 of 32
vi) Ex.WW-1/6: Order of the Hon'ble High Court dated passed by the Hon'ble Delhi High Court in the Contempt Petition CONT. CAS© No. 60 /13 in the Writ Petition (C) 1387/15;
vii) Ex.WW-1/7: Receipt No. 3187 dated 23.20.2015;
viii) Ex.WW-1/8: Regd. Postal receipt
ix) Ex.W1 : Copy of the first ACP scale wherein the basic pay was fixed at Rs.5,100/- per month. Thereafter annual increment in ACP scale fixed the basic pay was fixed at Rs.5,200/- per month. In the due course fixed the basic pay was fixed at Rs.5,500/- per month.
x) Ex.W2 : Fixation of Basic Pay as Rs.1330/- per month in respect of Sh. Inder Singh (workman-herein);
xi) Ex.W3 : 17) Despite opportunities the management has failed to cross
examine the workman/WW1, therefore, their opportunity to cross examine workman was closed vide order dt. 27-09-2018 and the case was fixed for management's evidence.
EVIDENCE OF MANAGEMENT:
18) The management has examined Sh. Shri Ajay Kumar S/o Shri Puranmasi, Manager of the management, tendered his affidavit in evidence which is Ex. MW1/A bears his signature at point 'A' and 'B'. He has relied upon documents i.e.
i) Ex. MW1/1(OSR). Copy of service book
ii) Ex. MW1/2 (OSR) Copy of letter dated 22.07.91
iii) Ex. MW1/3 (OSR) Copy of medical report dated 25.07.91
iv) Ex. MW1/4 (OSR) Copy of medical report dated 27.03.92 Page 9 of 32
v) Ex. MW1/5 (OSR) Copy of letter dated 13.08.91
vi) Ex. MW1/6 (OSR) Copy of letter dated 09.01.92
vii) Ex. MW1/7 (OSR) Copy of pay increment fixation sheet
viii) Ex. MW1/8 (OSR) Copy of master attendance register during the year 1991
ix) Ex. MW1/9 (OSR) Copy of absentee statement from 1981 to 1992
x) Ex. MW1/10 (OSR) Copy of office order no. 99 dated October 1963
xi) Ex. MW1/11 (OSR) Copy of letter dated 09.03.2012
xii) Ex. MW1/12 (OSR) Copy of letter dated 10.04.2012
xiii) Ex. MW1/13 (OSR) Copy of letter dated 19.03.2012
xiv) Ex. MW1/14 (OSR) Copy of receipt of cheque dated 15.05.13
xv)Ex. MW1/15 (OSR) Copy of FR 26 (Service does not count for increment) xvi) Ex. MW1/ 16 (OSR) Copy of chart of regulation of date of next increment xvii) Mark 'A' (18) Copy of cheque amounting to Rs.1,10,145 xviii) Mark 'B'. Copy of order dated 20.08.09 xix) Mark 'C'. Copy of cheque amounting to Rs.10,48,274/ xx)Mark 'D'. Copy of cheque amounting to Rs.15,000/ xxi) Mark 'E'. Copy of cheque amounting to Rs.91,507/ Page 10 of 32 xxii) Mark 'F'. Copy of order dated 05.11.2014 Objected to the Ex.
MW1/1 as this document neither pleaded in the WS nor in the evidentiary affidavit of the witness.
19) I have heard the final argument on behalf of workman as well as for management on 10-02-2020 and the matter was fixed for order and the parties were directed to file their written submission before the court by the next date of hearing. On the next date i.e. on 18-03-2020, the AR of the workman filed the written submissions, however, Sh. Jeet Kumar, AR of managements had filed its written submission through official Court email I.D. on 13- 07-2020 due to the Covid-19 situation.
20) ISSUE No.1 : To what amount, if any, the claimant is entitled to recover from the management? OPW
21) On the onset it will be appropriate to deal with the objection of the management regarding the scope of S.33-C-2 I.D. Act. The provision u/s 33-C(2) I.D. Act duly empowers the labour courts regarding 'Recovery of Money Due from an Employer' after the AWARD is passed which fulfils the basic criteria of prior adjudication. The present case duly satisfies the requirements under S.33-C-2 I.D. Act as the present application seeks implementation / enforcement of the AWARD previously passed. Needless to say that the various heads under which recovery is sought by the workman is a matter of pure merit to be decided on the facts of each case and cannot be simply swept away without going into the meticulous particulars of the 'pre-existing right of the applicant-workman'. The legal position in this regard is crystal Page 11 of 32 clear from the judgment rendered in Jeet Lal Sharma vs Presiding Officer {reported in 84 (2000) DLT 706}] wherein it was stated:
"7. To invoke the jurisdiction of the Labour Court under the present S.33(C)(2) either of the two ingredients must be present. The first is that a workman must be entitled to receive from the employer any money or benefit which is capable of being computed in terms of money and the second one is that a question must have arises as to the amount of money due, or as to the amount at which such benefit should be computed. A plain reading of the section shows that the Labour Court has jurisdiction to decide both these ingredients. Thus in a case where both these ingredients are satisfied or either these ingredients is satisfied, the Labour Court will have jurisdiction to determine the question. The Legislature has empowered the Labour Court to decide a dispute as to the right of workman to receive from the employer any money or any benefit which is capable of being computed in terms of money and also has authorised it to decide the question as to the amount of money due or as to the amount at which such benefit should be computed. (See Ambica Mills Ltd. Vs. Second Labour Court, 1967 II LLJ 800).
....
15. The point which is emphasised is that entitlement to receive money i.e. pre-existing right can be based on (1) adjudication (2) settlement (3) service conditions. If the right to get a particular benefit is there, the application u/s. 33-C(2) would be maintainable and jurisdiction of Labour Court will not be barred merely because employer has denied the same."
CERTAIN DOCUMENTS NOT ADDUCED BY THE MANAGMEENT BEFORE THE LABOUR COURT EALRIER WHEN Award dated 12.11.2003 passed by Ld. POLC-II WAS PASSED IN ID No. 11294 Page 12 of 32
22) The workman-herein is vehemently contending the aspect of certain documents which were earlier not adduced by the management-herein before the Labour court when the AWARD was passed in the matter ID No. 11294 Award dated 12.11.2003 passed by Ld. POLC-II, Delhi. In this regard the witness MW1 has been cross examined by Shri Ramsewak, AR for the workman. The cross examination of MW1 is reproduced as under:-
"It is correct that management is paying leave encashment, bonus and livery items etc. as per rules and regulations to all the employees. It is correct that the management has already provided increment to the workman w.e.f. 01.04.91 of Rs.1,330/-. I do not know whether documents Ex. MW-1/1 to Ex. MW-1/6 had already been exhibited in ID No. 11294 Award dated 12.11.2003 passed by Ld. POLC-II, Delhi. It is correct that document Ex. MW-1/10 had never been provided to the workman. It is wrong to suggest that Ex. MW-1/11 to Ex. MW-1/13 and Ex. MW-1/15, Ex. MW-1/16 had never been sent to the workman."
23) There is a catena of judgments that strict rules of evidence are not followed as "straight jackets" in the Industrial Disputes / Labour cases. In Hindustan Machine Tools Limited vs T. Bal Reddy { reported in 2002 (2) ALT 522, 2003 (96) FLR 16} it has been held: "It is consistently held and accepted that strict rules of evidence are not applicable to proceedings before the Labour Court/Tribunal but essentially the rules of natural justice are to be observed in such proceedings. Labour Courts/Tribunals have power to call for any evidence at any stage of the proceedings if the facts and circumstances of the case demand the same to meet the ends of justice in a given situation."
Page 13 of 3224) In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi 5 it was held:(SCC p.748, para
37): "37.... It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. ... The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straight Jacket formula. No mathematical formula could be laid on degree of proof..."
25) In State Of Haryana v. Rattan Singh {AIR 1977 SC 1512} it was held: "The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept."
26) This Tribunal will assess the evidence / documents as adduced by the management in the present case. It is immaterial whether the said documents were not produced / adduced previously in other case. Thus this argument of the workman-applicant holds no water.
WHETHER THE WROKAN IS ENTITLED TO THE RETIREMENT AGE OF 60 YEARS
27) Before going any further it will be appropriate to decide the actual retiring age of the workman-herein. The workman-herein has sought that his retirement age be considered as 60 years of age for the purpose of the back-wages and benefits etc. The management contends that age to be of 55 years for the present workman. As per office order no.99 dated 04/07/1963 the drivers of the corporation shall get the benefit of the enhanced retirement Page 14 of 32 age subject to their being found fit in every aspect after a thorough medical examination by the medical officer of the corporation every year after the driver attained the age of 55 years. The workman-herein was found medically unfit vide Medical Report dated 25.07.1992.
28) It will not be out of place to mention that the AWARD dated 12.11.203 mentioned in paragraph No.8 "......it is not open to the court to go into the correctness of the decision of the Medical Board....It is here pertinent to mention that it is admitted case of the workman that the workman was medically examined by the DTC Board and declared unfit......". This observation was not disputed before the Hon'ble High Court.
29) The issue of - retirement at the age of 55 years in case of DTC driver found medically unfit - is no more res integra and has been decided by the Hon'ble Delhi High Court in a catena of judgments. In DALEL SINGH v. DELHI TRANSPORT CORPORATION & ANR {Writ Petition (Civil) No.22194 / 2005 decided on November 2, 2006} while dismissing the petition of the DTC driver (who contended that the age of retirement of DTC employees was 60 years and, thereafter, he could not be retired at the age of 55 years) the Hon'ble Delhi High Court held:
"5. Both parties have argued in support of their claims. The case is covered by the judgment of this Court in the case Tarlochan Singh Aujla Vs. D.T.C. 2005 V AD(DELHI) 607 where this very question came for examination. A DTC driver after an accident in course of his work suffered amputation of foot. He was adjusted in the post of Peon on account of Section 47 of the Act and was retired at the age of 55 years. The same rule was quoted by the DTC respondent. The Court held as under:-
"If the Petitioner, due to his disability cannot claim as a right the continuance in service beyond the age of 55 Page 15 of 32 years because of his being medically unfit on reaching that age, he cannot steal an advantage over other persons because of his disabilities. The effect is that whilst the Petitioner would be entitled to payments in the pay-scale and receive all service benefits of a Driver, since he is not medically fit beyond the age of 55, he would have to superannuate on his attaining this age. This is also the intendment of the second proviso to Section 47 itself."
6. This is the natural fall out of the provisions of Section 47 of the Act. The Act does not anywhere say that the person disabled during his service be given better emoluments and service conditions than what he was already enjoying. It already protects him from his employment in all respects since his employment as a driver would have come to an end at the age of 55 years being found to be medically unfit to work as a driver. There is no reason why his employment should be extended, despite disability, beyond the age of 55 years. I am entirely in agreement with the decision of this Court in the case of Tarlochan Singh Aujla Vs. D.T.C.(supra)."
30) In the case of Rood Singh CWP 4417/2003, Dalel Singh (impugned in LPA 2123/2006) and in Mohinder Singh Vs. DTC also similar views were reiterated. While dealing with the differences of opinion on this issue of extension of the age of retirement till 60 years age, the Division Bench of the Hon'ble Delhi High Court disposed of a bunch of petitions in the case titled Dharam Pal v. DTC and other petitions decided on 9th Jan 2009 and held:
"18. In the light of the aforesaid observations of the division bench, the submission of the workmen/drivers that Section 47 of the disability act being a welfare legislation extends the age of their superannuation up to 60 years or in the alternative having been appointed to a lower post on account of benefits extended under section 47 of the Disabilities Act which post Page 16 of 32 carries the age of retirement as 60 years, they should also be retired at the age of 60 years is again unacceptable for the simple reason that the drivers joins the Corporation as drivers and were supposed to perform the duties as drivers till the age of 55 years..........The benefit of extension as is being conferred by the office order issued by the Management is only an enabling provision in the case of drivers who are fit to be retained in service and does not ipso facto increases the age of superannuation. In fact accepting the contentions of the drivers would be putting premium to their disability which is not the mandate of the Disability Act.
.....
20. Thus we are of the considered opinion that there is nothing in the Disability Act which permits extension of the service of an employee. The protection afforded under Section 47 is to an employee who incurs a disability during the period of his service which certainly means from the date of recruitment and the date of superannuation. If the date of superannuation is 55 years which is extendable on year to year basis subject to medical fitness it cannot be said that service of the employees must be extended on account of the provisions of the aforesaid Act even if he is unfit for the Job i.e. to act as a driver. ....
36. The views taken by the learned Single Judges of this Court in the Case of Trilochan Singh's case supra subject matter of LPA 1251/2007 as well as in the case of Dalel Singh Vs. DTC subject matter of LPA 2123/2006 as well as in the CWPs 12265/2004, 13885/2006 and 6803/2006 are upheld while the Judgments subject matter of LPAs 1214/2007 and 121/2007 are set aside leaving parties to bear their own cost."
31) In view of the facts of the present case and the case law cited herein-above the contentions of the management regarding the age of retirement at 55 years is upheld. Thus the workman-herein is found entitled to the Page 17 of 32 retirement at the age of 55 years (and not beyond) for the purposes of all the calculations herein-under.
Rs.1,10,145/- granted to workman u/s 17B I.D. Act whether wrongly adjusted by the management:
32) The workman has vehemently contended that the amount of Rs.1,10,145/- was wrongly adjusted by the management while making some payment to the workman-herein.
33) The law has been settled that if the Tribunal has passed award and directs the reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any Rule, if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court.
34) Under S.17B I.D. Act the employer is liable to pay full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule. The Hon'ble high courts have also amounts "over and above the amount which could be directed to be paid under Section 17B to a workman on satisfaction of terms and conditions as would enable the employer to recover the same". In Kishan Lal & Sons v. Govt. of NCT of Delhi & Ors {CM No.48/2005 decided on 28.04.2006} and Food Craft Instt. Vs. Remeshwar Sharma and Anr. [(2007) 2 LLJ 350 Del] certain principles were culled out from various judicial pronouncements touching upon various facets for grant of interim relief under Section 17B of the ID Act, in the following manner: "
"....xxx Page 18 of 32 (xvii) It will be in the interest of justice to ensure if the facts of the case so justify, that payment of the amount over and above the amount which could be directed to be paid under Section 17B to a workman, is ordered to be paid only on satisfaction of terms and conditions as would enable the employer to recover the same [para 13 of Regional Manager, Dena Bank v.
Ghanshyam].
.....xxx"
35) However, the interest of the employer is also taken care of. In Dena Bank v. Ghanshyam : (2001) 5 SCC 169 wherein the Apex Court in para Nos. 5 & 13 held as under:-
"5.The short question that arises for consideration is : whether the order of the High Court directing payment of regular salary payable on reinstatement as on the date of the order to the respondent, which is over and above full wages last drawn occurring in Section 17-B of the Act, is sustainable.
13. It must, however, be pointed out that while passing an interlocutory order the interests of the employer should not be lost sight of. Even though the amount paid by the employer under Section 17- B to the workman cannot be directed to be refunded in the event he loses the case in the writ petition, [See : Dena Banks case (supra)] any amount over and above the sum payable under the said provision, has to be refunded by him. It will, therefore, be in the interests of justice to ensure, if the facts of the case so justify, that payment of any amounts over and above the amount payable under Section 17-B to him, is ordered to be paid on such terms and conditions as would enable the employer to recover the same."Page 19 of 32
36) In the present case the management-herein has already been paying the wages amount under S.17B during the pendency of the matter before the Hon'ble High Court and is therefore justified in adjusting the said amount. The amount of Rs.1,10,145/- which was granted to workman u/s 17B I.D. Act is rightly adjusted by the management.
THE HEADS UNDER WHICH THE WORKMAN-HEREIN HAS CLIAMED:
37) As per Ex. WW-1/4 the workman-herein has calculated amounts under various heads such as : Basic Pay; DA; HRA; CCA; WA etc. for the period from Jan. 1992 till Dec. 2012.
i) full back wages amounting to Rs.28,20,239/-,
ii) leave encashment for a sum of Rs.2,08,141/-,
iii) gazetted holidays compensation for a sum of Rs.2,50,504/-,
iv) bonus w.e.f. 09-01-1992 to 31-12-2003 at the rate of Rs.2500/- per year :Rs.30,000/-,
v) bonus w.e.f. 01-01-2004 to 31-12-2012 @ Rs.3500/- per year for a sum of Rs.31500/,
vi) cost of livery items @ Rs.2000/- per year i.e. for 21 years for a sum of Rs.42000/-
vii) and cost of the writ petition imposed by the Hon'ble High Court on the managements for a sum of Rs.15,000/-.
38) The workman has calculated a total amount due as Rs.33,97,384/-. Admittedly, the amount of Rs.10,48,272/- and cost of Rs.15000/- has already been paid by managements to the workman. As per the observations of the Hon'ble High Court in the case titled Inder Singh v. Rajive Verma {Cont. Cas (C ) 60 of 2013} an amount of Rs.16,37,779/- was due and was payable to the petitioner, out of which a sum of Rs.one lakh or so, saving of Page 20 of 32 the petitioner. After deducting a sum of Rs.5 lakhs or so by way of income tax and CPF, the workman was paid approximately Rs.10,48,274/-, in addition to Rs.15,000/- as costs and Rs.91,507/-
by way of gratuity. This calculation was found as substantial compliance with the orders of the Hon'ble High Court "both in letter and spirit". That goes to say that the management has already paid the amounts towards "Cost of Rs.15,000/-" and "Gratuity of Rs.91,507/-".
39) The management has contended that the workman-herein is not entitled to any of the following benefits:
i) washing allowance because he had not performed the duty during the said period;
ii) benefits of increment from 1st April, 1991 because before the premature retirement his date of increment was 1st May, 1991;
iii) benefits of 1st ACP w.e.f. 1st August and 2nd ACP w.e.f.
February, 2005, as the benefits of ACP is given to those employee who have last 3 years ACR and past record are clear in service which needs to be considered by the Department Promotion Committee as per rules as to whether an employee is entitled for the same or not;
iv) Medical Treatment at the rate of Rs.100/- per month as an employee has to submit Doctor's prescription and Chemist bills etc. and without the same the medical claim is not admissible;
v) leave encashment as an employee has to work and earn Earned Leave after physical presence of 24 days after which the employee is entitled to one day leave;
Page 21 of 32vi) Bonus & Gazetted Holidays (the management-herein submitted that Section 2(rr) of the Industrial Dispute Act 1947 defines the "Wages" Bonus as such is not payable, the same has been decided in the case reported as 1990 (2) SCC 314.
vii) Allowance of Uniform etc. as without uniform duty, employee is not entitled for the benefits of livery items.
WHETHER THE WORMAN IS ENTITLED TO BONUS:
40) The workman-herein has sought Bonus w.e.f. 09-01-1992 to 31-
12-203 at the rate of Rs.2500/- per year for a sum of Rs.30,000/-; and the Bonus w.e.f. 01-01-2004 to 31-12-2012 @ Rs.3500/- per year for a sum of Rs.31500/-.
41) It has been held by the Hon'ble Supreme Court in Sree Meenakshi Mills Ltd. v. Their Workmen, reported in AIR 1958 SC 153, that the true nature and character of the workmen's claim for bonus against their employer is well settled. Bonus is not a mere matter of bounty gratuitously made by the employer to his employees; nor is it a matter of deferred wages. As held by the Supreme Court, the term "bonus" is applied to a cash payment made in addition to wages. It generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained. Scope of the jurisdiction of the Labour Court u/s. 33-C(2) has been considered by the Supreme Court in number of cases, notably among them being Punjab National Bank Vs. K.L. Kharbanda reported in 1962(1) LLJ 234. Central Bank of India Vs. P.S. Raj gopalan reported in 1963(2) LLJ 89 and Bombay Gas Company Limited Vs. Gopal Bhiva reported in 1963(2) LLJ 608. In East India Coal Company Limited versus Page 22 of 32 Rameshwar reported in 1968 (1) Lab. I.C. 6 Supreme Court considered the aforesaid three decisions and deduced eight propositions highlighting the ambit and scope of Section 33-C(2). Thereafter, the Court further made following pertinent observations:-
"It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer. Since the scope of sub-section (2) is wider than that of sub-section (1) and the sub-section is not confined to cases arising under an award, settlement or under the provisions of Chapter V-A, there is no reason to hold that a benefit provided by a statute or a scheme made thereunder without there being anything contrary under such statute, or S. 3-C(2) cannot fall within sub-section (2). Consequently, the benefit provided in the bonus scheme made under the Coal- mines Provident Fund and Bonus Schemes Act, 1948 which remains to be computed must fall under sub-section (2) and the Labour Court, therefore, had jurisdiction to entertain and try such a claim it being a claim in respect of an existing right arising from the relationship of any industrial workman and his employer.
42) In view of the case laws above-cited I don't find merit in the contentions of the management that the workman-herein is not entitled to Bonus due to Section 2(rr) of the Industrial Dispute Act 1947. The law is settled that when the Tribunal directed that the workman be reinstated with backwages treating such workman to Page 23 of 32 be in continuous service, the definition of "salary and wage" under Section 2(21) of the Payment of Bonus Act, 1965, or the definition of "wages" under Section 2(rr) of the Industrial Disputes Act, 1947 cannot be invoked for the purpose of whittling down the benefit of backwages intended by the order of the Tribunal. The word "backwages" in the order of the Tribunal in the said context has to be given a wide meaning and would include all monetary and other benefits to which the employee would have been entitled to, had his services not been terminated.
43) The workman is thus entitled to Bonus to the extent of the retirement age of 55 years and effective as per his service rules.
WHETHER THE WORMAN IS ENTITLED TO LEAVE ENCASHMENT; GAZZETTED HOILIDAY COMPENSATION AND COST OF LIVEERIES:
44) In Bharat Electronics Limited vs Industrial Tribunal {reported in 1990 AIR 1080, 1990 SCR (1) 971} while dealing with S.33(2)B of the I.D. Act the issue was whether Night-Shift allowance was 'Wages'. HELD: The workman had to earn night shift allowance by actually working in the night shift and his claim to that allowance was contingent upon his reporting to duty and being put to that shift. The night shift allowance did not automatically form part of his wages and it was not such an allowance which flowed to him as an entitlement of his service.
45) In the ruling of Bharat Electronics (supra), the Hon' Supreme Court had observed as under :
"PARA 14 ; Now confluencing the two legal thoughts expressed in Bennett Coleman's case (AIR 1970 SC 426) (supra) and Page 24 of 32 Dilbagh Rai Jarry's cae (1974 SC 130) (supra), the stream of thought which inevitably gurgles up is that an allowance which from the term of employment flows as not contingent on actual working is part of wages for the purposes of S. 33(2)(b) but an allowance which is earnable only by active serving is not an allowance which will form part of wages within the meaning of the said provision."
46) In view of the above, the claim of the workman on the arrears arising out of LTC, earned leave, RH and uniform allowance cannot be treated as wages since these are incidental upon the actual service rendered by way of physical presence of the workman in action. In the present case, the workman claims these benefits without actual and active presence of service but by way of default which cannot be allowed in the above context of law.
47) As far as Leave encashment for a sum of Rs.2,08,141/-, is concerned I find merit in the contention of the management that leave encashment as an employee has to work and earn Earned Leave after physical presence of 24 days after which the employee is entitled to one day leave. Thus the workman-herein is not entitled to Leave encashment for a sum of Rs.2,08,141/-. The workman-herein is not entitled to Gazetted holidays compensation for a sum of Rs.2,50,504/- because "physically attending office"
on gazetted holidays is necessarily required for its entitlement. As far as Cost of livery items @ Rs.2000/- per year i.e. for 21 years for a sum of Rs.42000/- I find merit in the contentions of the management that Allowance of Uniform etc. as without uniform duty, employee is not entitled for the benefits of livery items. Thus the workman-herein is not entitled to : Cost of livery items @ Rs.2000/- per year i.e. for 21 years for a sum of Rs.42000/-. However, the workman-herein is entitled Medical Treatment at the Page 25 of 32 monthly rate permissible on the submission of Doctor's prescription and Chemist bills etc. (without the same the medical claim is not admissible). The workman-herein is entitled to this only if he submits the said documents.
WHETHER THE WROKMAN-HEREIN IS ENTITLED TO THE BENEFITS AS PER THE ACP SCHEME:
48) The aspect of ACP is an essential aspect and would determine the fixation of pay-scale and eventually, the 'calculation' of the full back wages of the workman-herein. No doubt, the Labour Court awarded reinstatement with full back wages and continuity of service along with the other benefits. The Hon'ble Delhi High Court upheld the said award. Thought the management-DTC has substantially complied with the terms of the AWARD and also the Judgment of the Hon'ble High Court followed by the contempt proceedings before the Hon'ble High Court where the notice of contempt was discharged, the management-DTC is now contending that workman-herein is not entitled to the benefits of the ACP scheme which required clear past records of last 3 years ACR and the same ought to have been considered by the Department Promotion Committee as per rules.
49) As per the management-DTC the workman-herein was not entitled to the benefits of ACPs due to his unauthorised absenteeism of 43 days during the year 1990 and for 37 days during the year 1991. The Master Attendance register (MAR) is being relied upon by the management-herein. According to the records of the management-DTC the date of increment is to be forwarded in the next month due to leave without pay. The management has contended that the workman-herein is not entitled to the following:Page 26 of 32
i) benefits of increment from 1st April, 1991 because before the premature retirement his date of increment was 1st May, 1991;
ii) benefits of 1st ACP w.e.f. 1st August and 2nd ACP w.e.f.
February, 2005, as the benefits of ACP is given to those employee who have last 3 years ACR and past record are clear in service which needs to be considered by the Department Promotion Committee as per rules as to whether an employee is entitled for the same or not.
50) The Government of India with a view to "deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues, introduced the Assured Career Progression (ACP) Scheme with effect from 09.08.1999 vide its Office Memorandum dated 09.08.1999. To mitigate the hardship in cases of acute stagnation in a cadre or in an isolated post, it was decided to grant two financial upgradations under the ACP Scheme to Group 'B', 'C' and 'D' employees on completion of 12 and 24 years of regular service. As per ACP Scheme, isolated post in Group 'A', 'B', 'C' and 'D' cadres which had no promotional avenues also qualified for similar benefits. The financial upgradations under the ACP Scheme is placement in the higher Pay Scale and financial benefits in the higher Pay Scale without regular promotion. Under the financial upgradation, grant of financial benefits under the ACP Scheme to the government servants concerned is on personal basis. Such financial upgradation neither amounts to regular promotion nor require creation of new post.
51) In order to bring systematic changes in the existing scheme of ACP so that all employees irrespective of existing hierarchical structure in their organisations/cadre get the same benefit, MACP was recommended by the Sixth Central Pay Commission which was accepted by the Government with certain modifications vide Page 27 of 32 its Office Memorandum dated 19.05.2009. Under the Sixth Central Pay Commission, revised pay structure has been implemented with effect from 01.01.2006; whereas benefits of ACP Scheme have been allowed till 31.08.2008. Vide Office Memorandum dated 19.05.2009, the Government of India introduced the MACP Scheme, in supersession of the ACP Scheme w.e.f. 01.09.2008. There shall be no change in distinction, classification or higher status on grant of financial upgradation under MACP as the upgradation is purely personal and merely placement in the next higher Grade Pay. Under the MACP Scheme, three financial upgradations are made available in the next grade pay to an employee who has completed 10, 20 and 30 years of regular service in the same post without getting any promotion. The benefit would be available at the next higher grade pay. [as per observations in UNION OF INDIA VERSUS M.V. MOHANAN NAIR {CIVIL APPEAL NO. 2016 OF 2020 (Arising out of SLP(C) No.21803 of 2014) decided on 5th March 2020}]
52) For a proper understanding of the controversy, which essentially focuses on the petitioner's claim to ACP benefits, it would be necessary to set out the terms of the scheme, found in Annexure I to the Office Memorandum dated 09.08.1999. The same are extracted below:
"1. The ACP Scheme envisages merely placement in the higher pay-scale/grant of financial benefits (through financial upgradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional/regular promotion nor would require creation of new posts for the purpose;
53) The financial upgradation not being a promotion as even on such upgradation the employee would be discharging the same duties without enjoying the status of the higher post, applying the strict tests of promotion is erroneous and defeats the very Page 28 of 32 purpose of the Scheme, which is to provide a safety net to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. As per the scheme the financial benefits under the ACP Scheme shall be granted from the date of completion of the eligibility period prescribed under the ACP Scheme or from the date of issue of these instructions whichever is later. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second upgradation which would also get deferred accordingly. Thus the ACP benefits can be deferred but not denied.
54) The tenor and terms of the ACP scheme are such that the employee is entitled to the upgradations reckoned from the date of entry into the regular service. This is evident from Paras 4 and 15 of Ann.1 to OFFICE MEMORANDUM No.35034/1/97-Estt(D) dt.
August 9, 1999:
"4. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second upgradation which would also get deferred accordingly...
15. Subject to Condition No. 4 above, in cases where the employees have already completed 24 years of regular service, with or without a promotion, the second financial upgradation under the scheme shall be granted directly. Further, in order to rationalise unequal level of stagnation, benefit of surplus regular service (not taken into account for the first upgradation under the Page 29 of 32 scheme) shall be given at the subsequent stage (second) of financial upgradation under the ACP Scheme as a one time measure. In other words, in respect of employees who have already rendered more than 12 years but less than 24 years of regular service, while the first financial upgradation shall be granted immediately, the surplus regular service beyond the first 12 years shall also be counted towards the next 12 years of regular service required for grant of the second financial upgradation and, consequently, they shall be considered for the second financial upgradation also as and when they complete 24 years of regular service without waiting for completion of 12 more years of regular service after the first financial upgradation already granted under the Scheme."
55) The management-DTC in the present case is harping upon the Master Attendance register (MAR) to show unauthorised absenteeism of workman-herein of - 43 days during the year 1990 and of 37 days during the year 1991 - to deny the two ACPs to the workman-herein. It is the contention of the management-DTC that the workman-herein was not entitled to any of the two ACPs due to the said factor. However, the management-herein has not adduced any evidence of any "department proceeding" against the workman-herein. Deferral of the ACP is justified on the ground of 'departmental proceeding' and in the absence of any such proceedings, the management cannot punish / penalise and deprive the ACPs without a proper legal process.
56) The second fragment of the contention of the managements- DTC relate to treating the alleged unauthorized absence as "Leave Without Pay / Extra Ordinary Leave" relying upon FR-26 in order to deny the ACPs to the workman-herein. This contention is also unfounded. The unauthorised absenteeism - of 43 days during the year 1990 and of 37 days during the year 1991 - may have justified the deferment of the 1st ACP, but it was not a justification to withhold / deny the two ACPs. This action on part of the managements-DTC amounts to double jeopardy. The Scheme of ACP is clear that it can only be deferred / postponed for the purposes of calculations but cannot be perpetually denied.
Page 30 of 32Therefore the workman-herein is entitled to the 1 st & 2nd ACP in the absence of any cogent reason/evidence to the contrary.
57) Thus the ISSUE No.1 and the application is "parlty allowed" and decided in favour of the workman and against the managements- DTC in the terms of the following chart:
AGE OF 55 years (to be read alongside each relief RETIREMENT granted-herein).
ACPs Two ACPs decided in favour of the workman-
herein. The 2nd ACP to be granted as per para 15 of Ann.1 to OM No.35034/1/97-Estt(D) dt. August 9, 1999 depending upon the length of service till the completion of age of 55 years of the workman-herein.
BONUS Allowed: Workman-herein entitled to the all the BONUS @ rate permissible by service book.
FULL-WAGES Allowed in favour of workman as per the ACPs etc. MEDICAL EXPENSES Allowed in favour of workman-herein on submission of the medical documents .etc. @ rate permissible by service book Amount u/s 17B I.D. Found to be rightly adjusted by the Act managements-DTC LEAVE Workman found not entitled.
ENCASHMENT COST
OF LIVERIES,
WASHING
ALLOWANCE,
GAZZETTED
HOILIDAY
COMPENSATION
Past interest @ Workman found not entitled to (on any amount
24% p.a. whatsoever).
Future interest Workman entitled to the interest @ 12% per
annum if the managements-DTC fail to make
Page 31 of 32
balance payment within 60 days of the
publication / passing of this award / order
58) The managements-DTC will fix pay as per the findings herein-
above and will accordingly calculate the balance amount after adjusting the amount already paid by it within 60 days of the passing / publication of this order / award failing which the workman-herein will be entitled to interest @ 12% per annum till the time of its realization.
59)Application disposed of. Matter disposed of. File be consigned to record room.
60)Announced as per the advisory / orders of the Hon'ble High Court vide its order/letter No.R235/RG/DHC/2020 DATED 16052020 and the Amended Protocol Letter No:24/DJ/RADC.2020 dated 07052020 of Ld. District & Sessions JudgeCumSpecial Judge (PCAct),CBI, Rouse Avenue District Courts, New Delhi.
Announced in the open court.
Dated:14092020 (VEENA RANI ) Presiding Officer Labour Court Rouse Avenue Courts,New Delhi Judge Code : DL0271 Page 32 of 32 IN THE COURT OF Ms. VEENA RANI :PRESIDING OFFICER LABOUR COURT ROUSE AVENUE COURTS, NEW DELHI LCA No. 711/2016 INDUSTRIAL DISPUTE BETWEEN : Shri Inder Singh ( Driver) Batch Number8747, P.T. No:25407, C/o Sh. Ram Sewak, B218, First Floor, West Patel Nagar, New Delhi110008 .....Workman VERSUS (1) The CMD of DTC, I.P. Estate New Delhi110002 (2) The Depot Manager, Keshopur Depot, New Delhi110018 .....Managements 14092020 Present : Sh. Ram Sewak,AR of the workman.
Sh. Jeet Kumar, AR of the management.
Vide my separate detailed order the application of the workman is partly decided in favour of Shri Inder Singh ( Driver) Batch Number8747, P.T. No:25407. A copy of the award be uploaded on the website of RADC. A copy of the same be also delivered to both the parties as well as to the concerned Department through electronic mode or through Dak, if possible. File be consigned to Record Room.
Announced in the open court.
Dated: 14092020 ( VEENA RANI )
Presiding Officer Labour Court
Rouse Avenue Courts, New Delhi
Judge Code : DL0271