Delhi District Court
Sh. Suraj Bhan S/O Sh. Shish Ram vs Delhi Public Library on 20 March, 2015
IN THE COURT OF SH. RAJEEV BANSAL,
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL,
KARKARDOOMA COURTS, DELHI
I.D. No 05/05
Unique ID No. 02402C0420632013
Sh. Suraj Bhan s/o Sh. Shish Ram,
c/o Delhi Labour Union, Aggarwal Bhawan,
GT Road, Tis Hazari, Delhi 110054. .....Workman
Vs.
Delhi Public Library,
Shyama Prasad Mukherjee Marg,
Opp. Old Delhi Railway Station, Delhi 110006. ...... Management
Date of institution 20.01.2005
Date of reserving award 12.03.2015
Date of award 20.03.2015
Ref : F.24 (1895)/04/Lab./8466-70 dated 25.11.2004
AWARD
1.This is third round of litigation and the industrial dispute has been raised by the workman through the Union which has been referred by the Govt. of NCT of Delhi after failure of conciliation proceedings to this Tribunal for adjudication vide Reference dated 25.11.2004 with the I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 1 of 14 following terms of reference:-
''(1) Whether Sh. Suraj Bhan s/o Sh. Shish Ram is entitled to be promoted to the post of UDC from the yr. 1990 and Head clerk from the year 1998 and if so what directions are necessary in this regard?
(2) Whether the dismissal of Sh. Suraj Bhan s/o Sh.
Shish Ram from his services by the management is illegal and/or unjustified, and if so, to what relief is he entitled and what directions are necessary in this regard?
2. Statement of claim has been filed by the claimant, wherein it is stated that workman was appointed as LDC with the management on 11.10.76 against the reserved post of LDC. It is stated that management is not maintaining any seniority list of their employees. It is stated that in June, 1990 four posts of UDCs were vacant and on these posts other employees namely Sh. Vipin Kumar Arora Smt. Rama Sethi, Smt. Pawan Anand and Ms. Anupama Aggarwal were promoted on ad-hoc basis, though they were juniors to him. It is stated that workman sent a representation to the management in this regard on 23.08.1991 against which workman received a memorandum dated 09.10.1991 in which it was mentioned that at the time of said recruitment/promotion, no post was reserved for SC/ST. It is stated that said action of management was in complete violation of Recruitment Rules and thereafter workman I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 2 of 14 continued to make representations to various other authorities, in response to which Central Government made a committee to probe into the grievances of the workman, but the report of the committee was not provided to the workman despite his demand. It is stated that in the year 1998 three workmen namely Sh. Vipin Kumar Arora, Smt. Rama Sethi and Smt. Pawant Anand were promoted as Head Clerk and the workman was again ignored. It is stated that thereafter workman also sent one more complaint to the chief Vigilance Commission in this regard, due to which the management got annoyed and suspended the workman, which was totally illegal and unjustified. It is stated that thereafter workman was served with a charge sheet dated 12.10.2000 making various false allegations. Thereafter enquiry was held against the workman which was conducted without giving proper opportunity of defence to the workman. It is stated that the suspension of the workman was revoked by the management on 20.12.01 and ultimately the workman was dismissed from service w.e.f. 08.03.02. That before conciliation officer, the said dismissal was revoked and vide order dated 23.3.04, the punishment of withholding one increment with cumulative effect was imposed on the workman and as such he is not pursuing his dispute regarding dismissal as stated in the terms of reference. It is prayed that workman be promoted as I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 3 of 14 UDC w.e.f. February 1990 and Head clerk w.e.f. 1998. Cost of litigation has also been prayed for.
3. In the written statement filed by the management, it is stated that management is not an Industry as defined under Industrial Disputes Act and that Delhi Labour Union has no representative character to represent the employees of management and that the present reference is highly time barred as the workman himself has mentioned that the grievances relates to the year 1990-91 and present reference has been raised in the year 2005. It is stated that Delhi Public Library is funded by Central Government and as such Delhi Government is not competent to make present reference. It is stated that a competitive examination was held for the post of UDC in which the eligible LDCs amongst other could apply and the workman could not qualify even the written part of the examination and the successful candidates were appointed against such direct recruitment quota in which all the four posts fell to the lot of General candidates and there was no post reserved for SC/ST. It is stated that the workman was promoted as UDC in 1993 on adhoc basis in promotion quota. It is stated that in the cadre of UDCs there are two channels of Recruitment which are promotion and direct recruitment and that 40 point roster as prescribed by the Govt. of India was maintained for both the channels separately. It is I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 4 of 14 stated that workman filed a writ petition before Hon'ble High Court against his suspension order and the said writ petition was dismissed. It is further stated that the penalty of dismissal from service was later on modified vide order dated 23.3.04 to withholding of one increment with cumulative effect. Other averments made in the statement of claim have been denied and dismissal of the claim has been prayed for.
4. Rejoinder has been filed by the workmen, wherein he has denied the averments made in the written statement and has reiterated the contentions made in the statement of claim.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 02.08.2005:-
1. Whether the cause of the workman has been duly espoused? OPW
2. Whether the management is not an industry? OPM
3. Whether the dismissal of the workman is without holding legal and valid enquiry? OPW
4. Whether the dismissal of workman is illegal and unjustified? OPW
5. Whether the workman is entitled to be promoted to the post of UDC from the year 1990 and Head Clerk from the year 1998? OPW
6. In terms of reference.I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 5 of 14
6. Workman examined himself as WW 1. In his affidavit, he has reiterated more or less the contentions made in statement of claim. In cross-examination, he deposed that reservation policy of Govt. for SC/ST and 40 point Roster are applicable in the Library. He admitted that four posts of UDC available in August, 1990 were for direct recruitment. He has voluntarily stated that management has filled up the post by promotion. He admitted that he had not passed the said examination. He admitted that he was dismissed from service and that dismissal was revoked and he was taken back in service with payment of 25% back wages.
7. Management examined Dr. Banwari Lal, Director as MW 1. In his affidavit, he has reiterated the contents of written statement filed by management. He also filed additional affidavit in evidence vide which he tendered copies of certain notifications of Government in support of his plea that Delhi Government is not competent to make present reference. In his cross-examination, he admitted that working of management satisfies the needs of the society. He has deposed voluntarily that management is providing free service. He deposed that four vacant posts of UDC lying with the management in the year 1990 were for general category. He denied that he is not producing the seniority list of LDCs deliberately as it I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 6 of 14 supports the case of workman. He denied that four persons namely Sh. Vipin Kumar Arora, Smt. Rama Sethi, Smt. Pawant Anand and Ms. Anupama Aggarwal were promoted on adhoc basis or that they were junior to workman. He deposed that all these persons belong to General category.
8. I have heard arguments from Sh. Abhinav Kumar, Ld. Proxy Counsel for the workman and Sh. Mahendra Singh, Ld. Counsel/AR for management. I have carefully gone through record of the case. My findings on the issues are as under:-
9. Findings on issue no.1 Issue no.1 is : Whether the cause of the workman has been duly espoused? OPW WW 1 has proved on record copy of demand letter on the letter head of Delhi Labour Union as Ex. WW 1/1, its postal receipt as Ex. WW 1/2, signed AD Card as Ex. WW 1/3 and copy of statement of claim filed before conciliation officer through the union as Ex. WW 1/4. Moreover, in the reference order also name of the said Union is specifically mentioned. In view of these documents, it is held that cause of the workman has been duly espoused. Issue no.1 is decided accordingly.
10. Findings on issue no. 2 I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 7 of 14 Issue no. 2 is : Whether the management is not an industry? OPM
11. Section 2(j) of Industrial Disputes Act, 1947 defines the term industry. Same is reproduced as below:-
"industry" means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants of wishes which are merely spiritual or religious in nature), whether or not,-
(i) any capital has invested for the purpose of carrying on such activity; or
(ii) such activity is carried on with a motive to make any gain or profit, and includes-
(a) any activity of the Dock Labour board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);
(b) any activity relating to the promotion of sales or business of both carried on by a establishment, but does not include-
(1) any agriculture operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.
12. It is worth noting that management is a public library which carries systematic activities with co-operation of its employees for the providing services to the public with a view to satisfy human wants or wishes. Hence, activities of an management/Library are squarely covered I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 8 of 14 by the ambit of Section 2(j) of I.D. Act. No legal position has been shown for management as to how management does not come under the purview of "industry" as per provisions of I.D. Act. Thus, it is held that the management is an "industry" as defined under section 2(j) of the Act. Issue no.2 is decided accordingly.
13. Findings on issues no.3 and 4 Issue no.3 is : Whether the dismissal of the workman is without holding legal and valid enquiry? OPW.
14. Issue no.4 is : Whether the dismissal of workman is illegal and unjustified? OPW.
15. Both these issues, being interconnected, are taken up together.
16. In para 24 of the statement of claim, it has been stated by the workman that since his dismissal has been revoked by the management and he has been reinstated in service, he is not challenging the said dismissal order. Ld. AR for workman has also stated at the outset at the time of final arguments that since the applicant was reinstated in service after revoking his dismissal order and he has superannuated on 31.3.14, he is not challenging the dismissal order and is not claiming any relief in this regard. As such, this issue needs no decision, being not pressed.
17. Findings on issue no.5 I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 9 of 14 Issue no.5 is : Whether the workman is entitled to be promoted to the post of UDC from the year 1990 and Head Clerk from the year 1998? OPW
18. It has been been stated in the statement of claim that the applicant was appointed as LDC on 11.10.1976 and 4 persons namely Sh. Vipin Kumar Arora, Ms. Rama Sethi, Sh. Pawan Anand and Ms. Anupama Aggarwal who were appointed in 1985 as LDCs and were juniors to him, were promoted as UDC in the year 1990. It is stated that since the applicant was senior to the aforesaid four persons, action of the management in promoting the said juniors ahead of the applicant was illegal. Workman further stated out of these 4 persons, Sh. Vipin Kumar Arora, Ms. Rama Sethi and Smt. Pawan Anand were further promoted as Head Clerks in 1998. It is stated that the applicant was promoted as UDC in the year 1993. It is further stated that the seniority list was not published by the management and the juniors to him were promoted in violation of Recruitment Rules. As such a prayer has been made to promote the applicant as UDC w.e.f. February 1990 and as Head Clerk w.e.f. 1998.
19. Per contra, it has been stated on behalf of the management that in the year 1990 four direct recruitment vacancies of UDC were available I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 10 of 14 and as per 40 Points Roaster, the said vacancies fell to General Category and none of them was reserved for SC/ST. It has been stated that the applicant also appeared in the said competitive examination held to fill up those four direct recruitment vacancies but he could not qualify even the written test and the candidates who qualified the recruitment process, were appointed as UDC. It is stated that the applicant was promoted on adhoc basis under the promotion quota in the year 1993 as per his seniority. Further, it is stated that the 3 persons with whom the applicant has claimed parity were promoted under promotion quota in the year 1998 as per their seniority in the cadre of UDC while applicant was promoted as Head Clerk in the year 2013 as per his own seniority.
20. I have heard both the sides and perused records of the case. The applicant has not approached this Tribunal with clean hands. He has all along stated that the said four persons were 'promoted' in the year 1990 ignoring his seniority whereas the fact remains that the said appointment of those four persons was on 'direct recruitment' basis and not on 'promotion' basis for which a competitive examination was held by the management in which the applicant himself had participated but had failed to qualify the same. Once the applicant himself appeared in a competitive examination alongwith the successful candidates, but he himself could not I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 11 of 14 qualify the same, it does not lie in the mouth of the applicant to turn around and say that the said persons were 'promoted' ignoring his seniority. The applicant himself has admitted in his cross examination that he had appeared in the examination held in 1990 for filling direct recruitment post of UDC and those were four posts. Thereafter, the promotions were made in the year 1998 as Head Clerks from amongst the eligible candidates and eligibility for such promotion, as one of the essential qualification, was Graduation, which the applicant was not possessing. The applicant is only a matric as per the seniority list of UDC dated 19.9.97. Ex. WW1/19 is a document dated 9.10.91 issued by the management to the applicant wherein it was informed to him that at the time of appointment for the post of UDC through direct recruitment, no post was reserved for SC/ST candidates. The document thus, makes it amply clear that it was well within the knowledge of the applicant that the appointment carried out by the management in the year 1990 for the post of UDC was through direct recruitment which the applicant has willfully concealed throughout. Similarly, those three candidates were promoted as Head Clerks in the year 1998 as per their seniority as they were borne on the cadre of UDC w.e.f. 12.07.90 whereas the applicant became UDC on ad-hoc basis on promotion w.e.f. 4.2.93. The applicant was subsequently I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 12 of 14 promoted as Head Clerk w.e.f. 2013 as per his own seniority.
21. Although, no issue of delay and latches has been framed, in raising of this dispute in the year 2005 for the decision finalised in 1990 itself, this dispute would even be barred by delay and latches, besides being hit by concealment of material facts. It is, therefore, held that the applicant is not entitled to be promoted as UDC w.e.f. 1990 or as Head Clerk w.e.f. 1998. This issue is thus decided against the applicant/workman.
22. Findings on issue no.6.
Issue no.6 is "As per terms of reference". Terms of reference are : ''(1) Whether Sh. Suraj Bhan s/o Sh. Shish Ram is entitled to be promoted to the post of UDC from the yr. 1990 and Head clerk from the year 1998 and if so what directions are necessary in this regard? (2) Whether the dismissal of Sh. Suraj Bhan s/o Sh. Shish Ram from his services by the management is illegal and/or unjustified, and if so, to what relief is he entitled and what directions are necessary in this regard?
23. Term of reference no.2 regarding dismissal has been disposed of as not pressed vide issues no. 3 and 4.
24. As regards term of reference no.1 regarding promotion of workman, it has already been held vide issue no.5 that workman is not I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 13 of 14 entitled to such promotions, as claimed in the present dispute. Award is passed accordingly and reference is answered in these terms.
25. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open Tribunal
on 20.03.2015 (RAJEEV BANSAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
I.D. No 05/05 Suraj Bhan vs. Delhi Public Library Page 14 of 14