Delhi District Court
Smt. Lakhbir Kaur vs The on 10 May, 2010
1
IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D No 47/09
Smt. Lakhbir Kaur Workman
W/o Prit Pal,
C/o Nagar Nigam Karamchari Sangh Delhi Pradesh,
P-2/624, Sultanpuri, Delhi
Versus
The Management of Management
New Delhi Municipal Council,
C/o its Secretary,
Palika Kendra, Sansad Marg,
New Delhi.
Date of institution 27.08.09
Arguments heard on 03.05.10
Date of award 10.05.10
AWARD
1.Claimant has raised the present industrial dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this tribunal in the following terms:-
''Whether demand in respect of Smt. Lakhvir Kaur W/o Sh. Prit Pal to treat her intiital date of appointment as 20.10.1967 and accordingly for revision of her pension along with other retiral benefits with all consequential benefits, except gratuity is legal and/or justified, and if yes, what directions are necessary in this respect ?''
2. Case of the workman as stated in statement of 2 claim is that she was initially appointed with the management as Nurse Grade-B on 20.10.1967 and worked to the entire satisfaction of the management. It is alleged that workman was retired on 30.04.2001 she allegedly applied for settlement of all her retirement benefits. It is alleged that management settled the legal dues of workman regarding gratuity, leave encashment along with pension but in the settlement, her date of appointment was treated as 09.04.1969 in place of 20.10.1967 due to which workman has suffered huge losses in pension. Accordingly she reported the matter to management with the request to determine all her retirement benefits including pension from her initial date of her appointment i.e. 20.10.1967 in place of 09.04.1967 but the management has not taken any step to consider her demand. She also filed a complaint under payment of gratuity Act 1957, with the Labour Commissioner in which controlling authority has treated the date of her initial appointment as 20.10.1967 and directed the management to pay amount of Rs. 32054/- as difference of gratuity with interest at 10% per annum. Demand notice in this regard were also sent by the workman with the management but the management has not fulfill her demands.
3. In the WS, case of the Management is that workman was appointment as Nurse Grade -B on adhoc 3 basis in the year 1967. Her services were terminated in the year 1968, thereafter she was selected against a regular post on 09.04.1969 which was purely a fresh appointment. It is alleged that workman was retired on 30.04.2001 and only after expiry of long period of 7 years, she filed claim before Assistant Labour Commissioner. It is alleged that claim is not maintainable being filed after 8 years from the date of her retirement. It is alleged that workman is not entitled to any relief as claimed because she was initially appointed is adhoc basis prior to 09.04.1967, therefore her services prior to this date cannot be counted for grant of pensionary benefits.
4. On the basis of pleadings of the parties, following issues were framed :-
(1) Whether the claim is bad on account of delay and latched as alleged in preliminary objections in the WS.
(2) As per terms of reference.
5. In order to prove her case, workman has filed her affidavit as WW--1 whereas Management filed affidavit of Sh. Rajneesh Tingal as MW- 1.
6. I have heard AR for parties and have gone through the record of the case. My issue wise findings are as under:-
Findings on issue No 1
7. Issue no.1 is Whether the claim is bad on account 4 of delay and latched as alleged in preliminary objections in the WS. In her affidavit workman has stated that she was retired on superannuation on 30.4.2001. She has also stated that from the initial date of appointment she has put in 33 years, 6 months and 12 days of service, yet she was not given benefits of total length of service. She has also stated that under Payment of Gratuity Act her past service was to be counted for the purpose of grant of gratuity but the management did not give benefits ot her past service and the same were ignored by the management.
8. On the other hand Sh. Rajneesh Tingal, MW- 1, Director (Personnel) has stated in his affidavit that present claim is not maintainable as barred because workman had retired on 30.4.01 and the present claim has been filed after 8 years from the date of her retirement. No reason has been given by the workman as to why after her superannuation in the year 2001, she did not raise the dispute. It is not her case that she had made representation to the management or to the higher authorities and that the matter remained under consideration. She has only stated in para 9 of her affidavit that she had served a legal notice of demand to the management. Copy of that legal notice has been placed on record. She has not even deposed as to what is 5 the date of legal notice. In the absence of such evidence, it does not stand proved that workman raised her dispute within reasonable time after cause of action had arisen. Admittedly she has retired on 30.4.2001 and the present dispute has been raised by her by the reference in the year 2009.
9. In S.Shalimar Works Limited vs Their Workmen AIR 1959 SC 1217, it was held that though no limitation is prescribed for making reference of the dispute to an Industrial Tribunal, nevertheless, it has to be made within a reasonable period. In that case delay of 4 years in raising industrial dispute was held to be fatal. In another Authority reported as Nedungadi Bank Ltd vs K.P. Madhavakutty and others AIR 2000 SC 839, delay of 7 years was held to be fatal and disentitled the workman to any relief. Similar view was reiterated in S.M. Nilajkar and others vs Telecom District Manager, Karnataka 2003(4) SCC 27. Relying upon abovesaid authorities, our own Hon'ble High Court in Satbir Singh vs Management of Suptd. Engineer and others 138(2007) DLT 528 ( DHC), has been held that inordinate and unexplained delay in raising industrial dispute would defeat the rights of the workman and would disentitle him to any relief.
10. In view of above authorites, I hold that the claim 6 is barred by delay and latches. This issue is decided against the workman and in favour of management.
11. Findings on issue no.2 Issue no. 2 is As per terms of reference. Terms of reference are ''Whether demand in respect of Smt. Lakhvir Kaur W/o Sh. Prit Pal to treat her initial date of appointment as 20.10.1967 and accordingly for revision of her pension along with other retiral benefits with all consequential benefits, except gratuity is legal and/or justified, and if yes, what directions are necessary in this respect ?''
12. Workman in her affidavit has deposed that she had been appointed as Nurse Grade-B on 20.10.1967. Copy of interview letter issued to her dated 8.5.67 has been proved as EX WW 1/5. According to her, she was declared successful and was offered letter of appointment dated 10.10.67, copy of which has been proved as EX WW 1/4. It is important to note that in EX WW 1/4 there is specific mention that she was being appointed as Nurse Grade-B on adhoc basis only upto 29.2.68 but her services could be terminated earlier also. She has deposed that she was posted in NDMC Girls School Dispensary, Gole Market. Posting order has been proved as EX WW 1/2. she has also stated that prior to her regularisation she had availed terminal leave, coy of 7 which has been proved as EX WW 1/1. It is also deposed that during the period of her service between 1967-1985 some allowances were paid to her which were ordered to be recovered from her. Copy of the order has been proved as EX WW 1/3. However in EX WW 1/3, there is no mention that she was regularly appointed or engaged on adhoc basis or otherwise. She has also stated that she had put in service from 20.10.67, continuously and thereafter retired on superannuation on 30.4.01. According to her she has been paid gratuity by the authority, under the Gratuity Act for the period from 20.10.67 till she retired on superannuation with interest @ 10% pa which means that period of her service prior to regularisation has been taken into account for grant of gratuity. However she has deposed that for the pensionary benefits, same has not been taken into account and for that purpose management has taken the period from 9.4.1969 onwards till the date of her retirement. She has deposed to have raised demand with the management for benefits of the period from 20.20.67 and prior to 9.4.69 but the same was declined.
13. In her cross examination, she has specifically admitted that she was appointed on adhoc basis as Nurse Grade-B on 20.10.1967 in NDMC but she has denied that her services were terminated in the year 1967. She has 8 also denied that she was appointed afresh in the year 1969 after the management had advertised the post of Nurse Grade-B or that she had applied for the said post as advertised by NDMC. However she has admitted that she was selected for the post of Nurse Grade-B on regular basis by NDMC on 9.4.1969. She has denied that her appointment was fresh.
14. On the other hand MW- 1 Sh. Rajneesh Tingal has stated in his affidavit that claimant was appointed as Nurse Grade-B on adhoc basis in the year 1967 and her services were terminated on 16.9.68. Accordig to him she was selected against regular post on 9.4.1969 which was purely a fresh appointment and she retired on 30.4.01. According to her the present claim is not maintainable inasmuch as she was regularly appointed on the post of Nurse Grade-B w.e.f. 9.4.1969. Management has proved on record documents EX MW 1/1 to 1/3.
15. In the cross examination, MW- 1 has stated that letter of termination of services of the workman is EX WW 1/1. He has also stated in his cross examination that workman has been given benefits according to her regular service for the purpose of pensionary benefits. He has denied that period of service put in by the workman as daily wager/ adhoc service is required to be counted for the purpose of pensionary benefits. He has also denied 9 that services of the workman had been regularised and has added that she was freshly appointed on regular basis. He has admitted that EX MW 1/W1 has been issued by the management and appointment letter has been proved as EX MW 1/3.
16. It has been argued that on behalf of workman that workman was appointed as Nurse Grade-B on 20.10.67 on adhoc basis but she was regularised w.e.f. 9.4.1969. It has been argued that she retired on 30.4.01, therefore, whole period from 20.10.67 till 30.4.01 is liable to be considered for pensionary benefits.
17. It has been argued that initial appointment of the workman was regular in nature. Secondly It has been argued that even if workman has been appointed on temporary basis, her service is required to be counted in the qualifying service, hence workman is entitled for the benefits of her past service prior to 9.4.1969.
18. On the other hand It has been argued on behalf of management that workman had been employed as Nurse Grade-B on 20.10.67 purely on adhoc basis and that the appointment was not regular appointment. It has been argued that in response to the advertisement given by NDMC, workman has applied for the same, she appeared before the interview/ selection committee and was selected for the said post. It has been argued that 10 she was given appointment letter dated 9.4.1969. It has been argued that as per rules, services on adhoc basis can not be counted towards pensionary benefits. It has been argued that on 9.4.1969 she was appointed a fresh, that was a fresh appointment and on regular basis, therefore, past service of the workman cannot be taken into consideration. Secondly it has been argued that services of the workman had been terminated w.e.f. 16.9.68 and EX MW 1/1 has been placed on record. It has also been argued that when workman did not work after 16.9.68 until she was regularly appointed on 9.4.69, therefore, no period prior to her regularisaton on 9.4.69, put in by the workman can not be taken into consideration.
19. In the present case question which arises is whether initial appointment of the workman was on adhoc basis or on regular basis. Answer to this question can be found from the documents produced by the workman herself. She has placed on record EX WW ¼ dated 10.10.1967. It is an appointment letter issued to the workman. According to this appointment letter she was offered appointment as Nurse Grade-B purely on adhoc basis which was ordinarily to continue to 29.2.68 but her services were liable to be terminated without any notice or reason earlier also. It is, therefore, clear that initial 11 appointment of the workman was purely on adhoc basis and was not on regular basis. Nothing has been placed on record by the workman that she had applied for the post advertised by the NDMC or any examination was conducted for regular appointment. In the absence of such evidence and in view of the categorical mention of the fact that she was appointed on adhoc basis, I am of the view that management has proved that initial appointment of the claimant was purely temporary on adhoc basis as Stop Gap Arrangement and was not a regular appointment so that the workman could claim right to the said post.
20. Next question which arises is whether workman continued to work with the management uninterruptedly upto 19.7.69 when she was appointed again. Workman has stated that on that date she had been regularised. Management has placed on record EX MW 1/3. It is dated 19.7.1969. This is a resolution passed by NDMC according to which she was appointed on regular basis on 9.4.69 against the vacancy caused by dismissal of Mrs. F C Gill. It was on temporary basis. Reason as to why she was given appointment retrospectively can be explained perhaps she was working with the management w.e.f. 9.4.1969. However workman has denied that her services had been terminated in the year 1969. Workman has 12 placed on record document EX WW 1/1 (also EX MW 1/1 as proved by management), which clearly shows that 7 days leave combined with terminal leave (Earned Leave) w.e.f. 9.9.68 to 22.9.68 was granted to her and her services stood terminated w.e.f. 16.9.68. Workmen has also placed on record EX WW 1/2 which shows that one Mrs. Raj Makhija Nurse Grade-B had proceeded on maternity leave and in her place claimant had been appointed. That again clearly shows that workman had not been employed against any regular post initially but she was being given appoitment on the vacancy caused by Mrs. Raj Makhija being proceeded on maternity leave.
21. It is clear from the record that after dismissal of Smt. F C Gill Nurse Grade-B temporary but substantive vacancy had arisen in the year 1969 and that post which was advertised. The workman had applied against that post and she was appointed. Management has also proved on record EX MW 1/W1 dated 17.7.68. This document clearly shows that claimant had given an application to NDMC for the post of Nurse Grade-B and in response thereto she was directed to appear before selection committee on 23.7.68 at 9:30 am in room no.68. Though management has placed on record photocopy of the application allegedly given by workman but it is not signed by her nor it has been proved, therefore, it can not 13 be read in evidence.
22. Fact remains that services of the workman stood terminated w.e.f. 16.9.68. It is clear that workman had applied for the post of Nurse Grade B and on her application she was called for interview on 23.7.68. At that time she was working with the management. Question arises why did she apply for the post of Nurse Grade-B if she had been regularly appointed and was already working as Nurse Grade-B? EX MW 1/W1 clearly shows that she knew very well that she was working on ad hoc basis only as Stop Gap Arrangement against those vacancy which fell vacant on account of an employee proceeding on maternity leave or otherwise or for any other reason. When the substantive vacancy on account of dismissal of Mrs. FC Gill had arisen, that was the occasion that regular vacancy had arisen. It is against that post she had applied for, she was interviewed and was finally selected and appointed on regular basis against substantive vacant post. It is clear from EX MW 1/3.
23. In my opinion, therefore, it is clear that claimant had not been appointed on regular basis initially on 20.10.67. To her own admission in the cross examination, but she was appointed on adhoc basis. She underwent process of fresh recruitment by appearing before the appointing committee and again she was selected when 14 she was offered regular appointment in the year 1969 as is clear from EX MW 1/3. This vacancy had arisen on account of dismissal of Mrs. F C Gill former Nurse Grade- B. Therefore, when regular vacancy was not available prior to 9.4.1969 and she was working purely against the post which fell on account of employees proceeding on maternity leave or otherwise, I am of the considered opinion that version of the management that she was given regular appointment on 9.4.1969 is correct.
24. Now the question arises whether period of service rendered by an employee prior to regular appointment can be taken into account for the purpose of pensionary benefits? In this regard reference is made to Chapter 1, Rule 2 of CCS Pension Rules, relevant portion of which is reproduced as under:-
2. Application Save as otherwise provided in these rules, (these rules shall apply to Government Servants appointed on or before the 31st day of December, 2003), including civilian Government Servants in the Defence Services, appointed "Substantively" to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to-
(a) .............................
(b) persons in casual and daily-rated employment;
25. From Rule 2 of Central Civil Service Pension 15 Rules, it is clear that pension benefits are available to only those persons who were appointed substantively to civil posts in connection with the affairs of the union of the state. Such benefits are not available to the persons appointed in casual or daily rated employment and the persons paid from contingencies funds.
26. The concept of "substantive post" as referred to in Rule 2 clearly shows that the person should have been appointed against the post on the sanctioned strength of a particular cadre in substantive capacity. A person appointed in substantive capacity on a civil post will have right to post. A person appointed substantively against a civil post can be appointed temporarily or permanently. If a person so appointed against a substantive post is put probation, his services remain purely temporary until confirmed. After the probation period is successfully completed, person is confirmed, either in the capacity of temporary or in the capacity of confirmed employee appointed against a substantive post. Appointment remains against substantive post. It is in contradiction with the appointments made in government office as Stop Gap Arrangement on casual or adhoc basis. In such cases persons are appointed on casual post or on adhoc basis as Stop Gap Arrangement. They are not appointed against any substantive post, therefore, they do not have 16 any right to the civil post. Because they have not been appointed against a substantive post, they will not have right to the post. To be appointed against a substantive post is sine qua non to claim pensionary benefits from the date of such appointments.
27. In Swamy Compilation Pension Rules at page 8 Chapter 4, which deals with the qualifying service under the head of "Commencement of qualifying Service" it has been commented as follows:
The qualifying service of a Government Servant commences from the date he takes charge of the post to which he is appointed substantively. In the case of an appointment on an officiating or temporary capacity, the qualifying service shall commence from the date the government servant takes charge of the post if such officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post.
28. AR for the workman has drawn my attention to page 148 which defines continuous service including temporary service etc. However this provision does not help the workman because temporary service contemplated by this provision is the temporary service rendered in the "substantive capacity" and not as Stop Gap Arrangement or on adhoc basis.
29. From the provison of Rule 2 and Swamy's 17 Compilation Pension Rules, Page 8, it is clear that person who claims pensionary benefits should hold the post substantively. If he does not hold substantive post, he will not qualify to the pensionary benefits and services rendered by him as Stop Gap Arrangement or on adhoc basis or on casusl basis would not be counted for qualifying service.
30. In the present case workman had been appointed as Staff Nurse Grade B on 20.10.1967 purey on adhoc basis and not in substantive capacity, therefore, she does not have any right to that post. She was appointed either as casual worker or on adhoc basis only as Stop Gap Arrangement. Management advertised the post which had fallen vacant on account of dismissal of Sh. FC Gill, Staff Nurse Grade B and then a substantive post of Staff Nurse Grade B fell vacant in the department.
31. Management advertised that post, workman applied for the post and was selected. She was given appointment letter, therefore, that was purely a new appointment against a substantive post we.f. 9.4.1969. Therefore, qualifying service of the workman will be counted from 9.4.1969 and prior service rendered by her was not against a substantive post and was only as casual worker and, therefore, it can not be counted as her qualifying service. Workman is not entitled to any relief. 18
32. Award is accordingly passed. The workman is not entitled to any relief. Same be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court on 10.05.10 (BABU LAL)
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.