Delhi District Court
) Workman Has Raised The Present Dispute ... vs Management Of Mcd on 25 August, 2018
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IN THE COURT OF MS SHAIL JAIN, PRESIDING OFFICER, INUDSTRIAL
TRIBUNAL02, DWARKA COURTS, NEW DELHI
ID No. 948/16
Sh Chiranji Lal,
son of Sh. Mange Lal
represented by Delhi Municipal Workers Union
4/7, Asaf Ali Road, New Delhi02.
Vs
M/s Municipal Corporation of Delhi,
Through its Commissioner, Town Hall,
Chandani Chowk, Delhi.
Date of Institution: 06.03.2010
Date of Order:25.08.2018
A W A R D
1) Workman has raised the present dispute and on failure of
conciliation proceedings, GNCT of Delhi referred the dispute to this
Tribunal for adjudication in the following term of reference
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"Whether the demand of Sh Chiranji lal son of Sh
Mange Lal for grant of payscale of Rs.260400
revised from time to time with all consequential
benefit for the post of mason w.e.f. 1.4.1978 is
justified, and if so what directions are necessary in
this respect?"
2) Statement of claim was filed on behalf of the workman. In the
statement of claim, workman has stated that he was initially appointed
on 15/01/1971 as a mason on muster roll and got the wages of skilled
workman as a mason under the Minimum Wages Act, 1948. He was
regularized on the post of Mason w.e.f. 1.4.1978. However, he was not
given graded pay scale of Rs.260350 (260400) for the skilled post of
Mason. It is the claim of the workman that he was granted the lower pay
scale of Rs.210270, which was meant for unskilled worker instead of
Rs.260400 meant for skilled workmen. It is the claim of the workman
that granting of lower pay scale to the skilled workman is illegal,
wrongful, discriminatory and amounted to unfair labour practice. It is
the claim of the workman that after the inception of the Municipal
Corporation of Delhi, the standing committee of the Corporation
continued to accept the benefits of Central Govt employees to the
Municipal employees vide its resolution no 682 dt 13/12/73. According
to the second pay commission , the Corporation passed a resolution
accepting the grade of Rs.110155/ for the skilled workmen such as
Mason, Carpenters, Painter and fitter etc and after this in 3 rd pay
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commission grade of Rs.110155 was revised to Rs.260350 and then
JMC enhanced the grade to Rs.260400/. In the 4 th pay commission
this grade was again revised to Rs.9501500 and the Corporation also
accepted this after passing the Resolution. The post of Mason falls in
the category of skilled worker and the Management of the MCD did not
consider it appropriate to grant the sanctioned pay scale of skilled
worker to the category of Mason. It is the claim of the workman that the
CPWD implemented the award of Board of Arbitration as per the
direction of Hon'ble High Court and issued office Memorandum dt
20/01/97 and dt 22/09/93ECX dt 07/05/97 directing the Chief Engineer
and Superintending Engineer to merge all the Asstt Categories with the
corresponding main categories and the merged category are
reclassified as skilled workman, and after this order there is no Asstt
Category in the CPWD. The management had decided by decision no
2340 dt 05/06/92 to revise the pay scales of skilled workers from
Rs.260350 to Rs.260400. After the abovesaid decision, the
management has issued the office no 2052 dt 12/07/82 and
implemented the award of JCM revising the pay scale of skilled workers
such as Mason, Carpenters, Painter and Fitters etc from Rs.260350/
to Rs.260400/ w.e.f. 1.1.73. It is the claim of the workman that he had
made various representations to the management to grant him the
pay scale of skilled worker ie Rs.260400/ from the date of his initial
appointment and he may also be paid arrears of pay ie difference from
the pay of Asstt Mason to mason. However, the management had not
paid any heed to the representations of the workman. Hence the
present dispute.
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3) Management/MCD has filed the written statement wherein they
have taken the preliminary objection that the present dispute is not an
industrial dispute, as the same has not been espoused by the union.
The statement of claim is not maintainable on the ground of latches,
since workman was regularized long back on 01/04/78 without any
protest and without any representation at that time. The claim of the
claimant is not maintainable in view of the fact that the claimant is
regular employee of the management. All the employees of the
management are governed by the Central Civil Rules, as such in case
of any dispute, the efficacious remedy lies with the Central
Administrative Tribunal, hence present claim is liable to be dismissed.
The claim of the claimant for the pay scale of Rs.260400 revised pay
scale of Rs.9501500 is not justified on the ground that there are two
categories of the post of mason, ie "Jr mason/mason" and "Sr mason".
The post of "junior mason" and mason are the same post and post of
"senior mason" is promotional post to the post of junior mason/mason.
The pay scale of mason/Jr mason in 3 rd pay commission was Rs.210
270 and as regards pay scale of "Sr mason" it was Rs.260400. It has
also been submitted by the management that as per the recruitment
rules, the entry scale for the post of mason was in the pay scale of
Rs.210270, revised pay scale of Rs.8001150, whereas pay scale of
Rs.260400 is the pay scale for the promotional post of senior mason.
The claim of the workman for the pay scales of Rs.260400 is not
justified since this scale is for the post of Sr Mason. In the present
claim, the claimant is claiming parity with CPWD but management has
its own notified recruitment rules and regulations and the recruitment
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rules of CPWD are not applicable to the employees of the management.
The workman was engaged on daily wages on the semiskilled category
and was later on regularized on the semiskilled post of mason whereas
the pay scale of Rs. 260400 is the pay scale meant for the skilled post
of Sr Mason, as such the claim of the claimant is liable to be dismissed.
Even otherwise Hon'ble High Court in a case titled as Delhi Municipal
Workers Union (regd) vs Management of MCD , CPW No 1756/04 vide
order dt 12/12/06 has held that the pay scales granted by the
management are correct and the petitioners are not entitled for the pay
scale of Rs.260400/ as claimed. In view of the said judgment, present
claim is not maintainable. Management has also submitted that no
dispute exists between the parties as the management vide resolution
no 902 dt 5/3/07 has merged both the junior & senior category of
mason, carpenters, painters, fitter and wireman w.e.f 1/1/96.
4) On 09/01/2012, following issues were framed by my Ld
Predecessor:
1) Whether the present claim of the workman has been properly
espoused by the union? OPW.
2) Whether the statement of claim is not maintainable on ground of
latches/belated stage?OPM
3) As per terms of reference.
5) After framing of issues, workman has led his evidence and in
support of his case, workman has appeared as WW1 and has
tendered his affidavit in evidence as Ex WW1/A. Workman has also
relied upon documents Ex. WW1/1 to Ex WW1/10. WW2 is the witness
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Sh. Subodh Kulshreshtha, who has tendered his affidavit in evidence as
Ex. WW2/A and has relied upon the documents from Ex.WW2/1 to
Ex.WW2/5.
6) From the side of management, no witness has been examined by
the management despite various opportunities, hence management
evidence was closed vide order dt 10/04/2018.
7) Arguments were heard from Ld A.R for the parties.
8) It has been submitted by Ld AR for the workman Sh D.P. Tiwari
that present workman was given appointment on muster roll basis in the
year 1971 in the management and lateron he was regularized w.e.f
1.4.1978 on the post of mason as he was already working as mason since 1971. Ld AR for the workman had vehemently argued after taking support from the various resolutions, documents of management to prove that as per the policy of the management, there was actually one post of "Mason" in the skilled category. And there were no two posts of masons ie "Mason/Jr Mason" and "Sr Mason", as is tried to be put by the management. Taking recourse to various documents ie 3 rd pay commission report, resolutions adopted by the MCD, Gazette of Govt of India as applicable, Ld AR for the workman has strongly submitted that by the order of Hon'ble High Court of Delhi, this issue has been set at rest in case of MCD vs Abid Ali, LPA No 126/2010 to the effect that there was only one post of skilled category of mason, carpenters, painters etc and it has been held by Hon'ble Division Bench of High Court of Delhi, in their order dated 31/5/11 that there were no two categories of these posts and hence all the workmen, who were regularized on the post of mason were entitled to get the pay scale of 6 Out of 19 7 Rs.260400 (revised from time to time). It was further submitted by Ld A.R for the workman that management cannot deny the relief to workman on the ground of alleged delay or latches, as whenever salary was given to the workman, new cause of action has arisen in favour of the workman, as he has been given less salary, than his entitlement. With these submissions, it is prayed by Ld A.R for the workman that reference be answered in affirmative and benefit of pay scale be granted to the workman.
9) On the other hand, Ld AR for the management, Sh Harbans Kaushal, Advocate has submitted that admittedly workman was regularized in the year 1978 but the present reference has been filed in the year 2010 ie after the gap of 32 years, therefore, workman is not entitled to get any relief. It was also submitted by Ld A.R for the management that as per the resolution no. 902 of 2007 of MCD, both the categories of Jr Mason/Mason and Sr Mason have been merged into one category since 1996 and the benefit has been given to all the concerned workmen. It is further argued by Ld AR for the management that post of Sr Mason was promotional post and therefore, it cannot be asked as the matter of right by the workman. Workman was regularized on the post of mason, which was semi skilled post and accordingly, pay scale of Rs.210270 was given to him as pay scale of Rs.260400 was the pay scale available to Sr. Mason and it is skilled category & promotional post. With these submissions, it is prayed by Ld AR for the management that workman is not entitled to seek the relief of enhanced pay scale, therefore the claim of the workman should be dismissed.
10) I have considered the arguments advanced by Ld A.R for the 7 Out of 19 8 parties, evidence led by the workman, the material available on record and the relevant provisions of law. I have also gone through the judgments relied upon by Ld A.R for the workman.
11) After considering the same, my issue wise findings are as follows: The issue no. 1 Whether the present claim of the workman has been properly espoused by the union? OPW
12) Industrial dispute has been defined in Section 2 (k) of Industrial Dispute Act. For better understanding Section 2 (k) is reproduced as under:
"Industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen or between workmen and workmen which is connected with the employment or non employment or the terms of employment or with the condition of labour, of any person"
13) Thus from the definition of Industrial Dispute given in section 2 (k) of the Industrial Dispute Act, it is clear that any dispute between the employer and employer or between the employer and workmen or workmen & workmen, which is connected with the employment or non employment or terms and conditions of the employment would be treated as an industrial dispute. It is also to be noted that section 2 (k) of Industrial Dispute deals with the dispute of 'workmen' and not 8 Out of 19 9 'workman' ie any dispute of an individual workman, unless the same is espoused or sponsored or supported by the union of workmen will not be treated as industrial dispute.
14) It has been held in various cases as early as in the year 1955 that unless the dispute of individual workman is supported by the union of the workmen or sponsored by the union of workmen the dispute will not be an industrial dispute u/s 2 (k) of the Industrial Dispute Act.
15) In case Workmen of M/s Dharampal Prem Chand (Saugandhi) vs M/s Dharampal Prem Chand (Saugandhi) (1965) 3 SCR 394, Hon'ble Supreme Court of India dealt with the issue of espousal of individual dispute of workman. In this case, Hon'ble Supreme Court had held that:
"The decisions of this court have consistently taken the view that in order that a dispute between a single employee and his employer should be validly referred under section 10 of the Act, it is necessary that it should have been taken up by the Union to which the employee belongs or by a number of employees. On this view, a dispute between an employer and a single employee cannot, by itself, be treated as an industrial dispute, unless it is sponsored or espoused by the Union of the workmen or by a number of workmen."
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16) After the decision of case Workmen of M/s Dharampal Prem Chand (Saugandhi) vs M/s Dharampal Prem Pal (Saugandhi) (mentioned above), Section 2 A of Industrial Dispute Act has been added in the Act, in 1965, which provides that any individual workman who has been discharged, dismissed, retrenched or otherwise terminated from the services by the employer, then all the dispute between that workman and his employer connected with or arising out of such discharge, dismissal or retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman or any "union of workmen" is party to the dispute. Thus, from the joint reading of section 2 (k) of Industrial Dispute Act and Section 2A of Industrial Dispute Act, it is clear that individual workman can raise the industrial dispute only in respect of the dispute arising out of his discharge, dismissal or retrenchment or termination. And all other causes of dispute is to be espoused by the union of the workmen.
17) Thus, it has been settled law that in case of individual workman, an industrial dispute can be raised, if the workman has been supported by the union of workmen or by group of workmen. In the present case, WW2 Shri Subodh Kulshreshtha, Zonal Secretary of Delhi Municipal Workers Union (Regd) has appeared as witness of the workman. He has specifically stated in his affidavit that Delhi Municipal Workers Union is registered Union. Ex.WW1/7 is the request letter, which was sent to management. Ex. WW1/8 is the copy of Minutes of Meeting of union for taking up cause of workman. Workman has also relied upon and proved on record the document Ex.WW1/7, which is legal notice given by the workman along with the union to the management for 10 Out of 19 11 implementation of the policy. Except suggesting these letters to be not true, management has not led any evidence to disprove the espousal of the union in favour of the workman. Even otherwise, in respect to the present dispute, I am of the opinion that admittedly cause of the workman falls within the definition of Section 2 (K) of Industrial Dispute Act, as it is in relation to the service condition of pay scales of the workman, which is between the workmen and the management, therefore, it cannot be said by any stretch of imagination that present dispute is not an industrial dispute.
18) As regards the espousal of cause of workman, I am of the opinion that Industrial Dispute Act, 1947 was drafted by the legislatures for providing relief to the workmen against technicalities of law. In the present case, it has been specifically proved by the workman, with the help of various resolutions passed by the MCD/management, orders of management that the recommendations of 3 rd pay commission and 4th pay commissions were accepted by the department i.e. MCD. Workman has also relied upon the Office Memorandum of the Govt of India, schedule of establishment of MCD to prove that actually present workman was entitled to pay scales of Rs.260400 from the date when he was regularized ie from 1.4.1978 but he was granted pay scales of Rs.210270, which is illegal on the part of the MCD. In various other cases, it has been held by Hon'ble High Court of Delhi as well as by Industrial Tribunals that action of the MCD is wrong. I am of the opinion that once some wrong has been committed by the management (MCD herein) and same has been identified and held to be illegal by Hon'ble High Court of Delhi in LPA no. 126/2010, it cannot be said that the 11 Out of 19 12 workman has no right to raise present industrial dispute or that same is not espoused by the union, hence issue no. 1 is decided in favour of the workman and against the management.
ISSUE NO. 2: Whether the statement of claim is not maintainable on ground of latches/belated stage?OPM
19) In respect to this issue, the contention of Ld AR for the management had been that since the workman was regularized w.e.f. 1/04/78 but present reference has been filed in the year 2010, therefore, there is delay of 32 years, which has not been explained by the worker, hence workman is not entitled to get any relief on the ground of delay and latches. On the other hand, contention of Ld AR for the workman has been that every month, when less salary was given to workman, it gave him the cause of action against the management, thus, there is no issue of delay or latches against the workman.
20) After considering the submissions of Ld A.R for the parties and considering the provisions of Industrial Dispute Act, 1947, I am of the opinion that in the Industrial Dispute Act, no limitation has been provided for making reference to the Labour Courts or Industrial Tribunals by the Legislatures. In other words, it can very well be said that any industrial dispute, which arises between workman and management can be referred to the concerned Labour Courts or Industrial Tribunals without considering the period of limitation.
21) In the case titled as Ajaib Singh vs The Sirhind CoOperative Marketing cum Processing Service Society Ltd and anotherCivil Appeal No. 2157 of 1999, Hon'ble Supreme Court of India had held that:
12 Out of 19 13 "No reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the Tribunal, labour court on board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal."
22) In view of the judgment of Ajaib Singh vs The Sirhind Co Operative Marketing cum Processing Service Society Ltd and another (Supra), it is clear that Limitation Act does not apply to the reference made to the Industrial Tribunal. The Tribunal has only to see whether there was any inordinate delay in raising the dispute or not. In the present case, it is admitted case of the parties that earlier also such demands have been raised by the fellow workmen of the present workman, on which order was also passed by Ld Industrial Tribunals. Against these order, MCD had filed various Writ petitions before Hon'ble High Court of Delhi, some of them were decided in favour of the MCD and some of these were dismissed. Therefore, LPA was filed by both the parties ie workmen and MCD before Hon'ble High Court of Delhi and vide order dated 31/05/2011 , Hon'ble Division Bench of Hon'ble Mr Justice Vikramjit Sen and Hon'ble Mr Siddharth Mridul of Hon'ble Delhi High Court had passed combined order in LPA No 126/2010 titled as MCD vs Abid Ali, which had disposed off these LPA.s, which, at that time, were pending before Hon'ble High Court of Delhi. Once these appeals were decided by Hon'ble High Court of Delhi 13 Out of 19 14 in May 2011 and has settled the issue regarding issue of pay scales to be granted to the workman regularized at the post of Mason, carpenters, painters etc, it was the duty of the management to implement the order immediately and grant the relief to all the workmen who had filed the writ petitions before Hon'ble High Court of Delhi and also to those workmen who were equally placed but had not taken step to file the writ petitions or industrial disputes. It is the management, who has not acted properly and judiciously, due to which, these references have been made and industrial disputes have been raised by the workman, even after the dispute being settled by Hon'ble High court of Delhi in LPA No 126/2010. Considering the same, I am of the opinion that issue no. 2 is to be decided in favour of the workman as there was no delay or latches in filing the reference. Hence issue no. 2 is decided in favour of the workman and against the management.
ISSUE NO. 3.: " As per terms of reference"
23) In this reference, the claim of the workman is that he was appointed as mason on muster roll with the management in the year 1971. As per phase mannered policy, he was regularized on the post of mason w.e.f. 01/4/78 but while regularizing him, his pay scale was fixed as Rs.210270 instead of Rs.260400. The bone of contention of Ld AR for the workman, in this case, is, that there was only one post of "mason" in MCD which is skilled category. As per the document Ex.WW1/2, which is the photocopy of the resolution no. 682 dated 13/12/73 passed by management in respect to the implementation of 3rd pay commission report, it has been specifically mentioned by the
14 Out of 19 15 MCD that "these rules and orders will apply mutatis mutandis to the employees of the corporation", meaning thereby that rules of 3 rd Pay Commission were accepted by the MCD for its own employees. In the schedule showing the present and Revised scale of pay of the general wing of MCD, at column 14, it is clearly mentioned that for the category of workmen employed as Mason, Carpenters, Painter, Fitter, Black Smith, Operator, Moulder, Turner, Welder, Wireman GradeI, Mechanic Setter, Electric Mistry and Electric Motor Mechanic etc, who were earlier getting the pay scale of Rs.110155 will be revised to pay scale of Rs.260350. Further, it has been argued by Ld AR for the workman, as per the document Ex.WW1/4, which is resolution/letter of management which revised the pay scales of 26 categories of the skilled workers on the basis of Award given by the Board of Arbitration (JCM) w.e.f. 1/3/1973 by the Ministry of Works and Housing. It was therefore resolved by the Standing Committee of the MCD that pay scale of 26 categories of skilled workers of MCD be also revised from Rs.260350 to Rs.260400 w.e.f. 1.3.73. It has been further submitted by Ld A.R for the workman that since the post of "Mason" fell within the 26 categories of the skilled workman mentioned in Ex.WW1/4, the pay scale available to the category of "Mason" was Rs.260400 but present workman Chiranji Lal as per his regularization letter was given the pay scales of Rs. 210270. Therefore, it is the prayer of workman that he should have been given the pay scale of Rs.260400 i.e. pre revised pay scale on the date of his regularization i.e. 01/04/1978.
24) In this regard, the contention of the management has been that there are two categories of mason ie Jr Mason/Mason and Sr Mason.
15 Out of 19 16 Sr Mason is a promotional post whereas the Jr Mason/Mason is initial post having the pay scale of Rs.210270 revised to Rs.8101500. The contention of management is that since present workman was only mason ie at the initial level of post, he was not entitled to revised pay scale of Rs.260400 or revised pay scale Rs.9501500.
25) Further the contention of the workman had been that as per schedule of establishment of MCD in the year 199798 as well as in the year 200405, there was only one post of 'Mason' in the initial department and there was no two post of mason as claimed by the management. It has also been argued on behalf of the workman that although it has been placed on record by the management that there were two posts as "Mason and Sr mason" , as per Recruitment rules and post of Sr Mason is promotional one but in the entire case, management has not been able to show any single case of workman, who has been promoted to the post of Sr Mason during his career. No evidence has been led by management, despite several opportunities given to them. Hence contention raised in WS by management have not been proved by management. Therefore, it appears that two posts have been created by the management only on papers but actually no such bifurcation of post is functional in the department. Although, various documents, orders & circulars have been relied upon by Ld AR for the workman in order to prove the case of workman, but I do not wish to discuss all these documents in detail as entire controversy has already been set at rest by Hon'ble High Court of Delhi in LPA no 126/2010 titled as MCD vs Abid Ali passed by Hon'ble Division Bench of Hon'ble High court of Delhi. Appeal was filed by the MCD before 16 Out of 19 17 Hon'ble Supreme court of India against order dt 31/05/11 passed by Hon'ble Delhi High Court, and the same was dismissed by Hon'ble Supreme court of India vide its order dated 18/09/14, hence the order passed by Hon'ble High court has become final.
26) In LPA No. 126/10 in case MCD vs Abid Ali Hon'ble Division Bench of Delhi High court has discussed all these issues and contention of the parties, which have been raised in the present case, more specifically argument of the MCD regarding there being two posts, one of entry level and other of promotional level for all categories of skilled workers, and various resolutions adopted by the management as relied upon by workmen. After considering the various documents and submissions of Ld A.R for the parties, Hon'ble High Court has held that:
"It is indeed bewildering as to why the MCD has filed Appeals or is resisting Appeals filed by the workmen in the face of their recommendations to the effect that "
it is proposed that administrative approval for implementation of these awards and any award received in future be accorded.
It is in this analysis we hold that in actual practice the MCD did not maintain a Senior/promotional level in contradiction to a Junior/Entry level. Accordingly, there was no justification for regularizing workmen/employees in the scale of Rs.
210270. In the events of MCD's withdrawal or grant of the higher scale of Rs. 260400 to the workmen/employees identically placed to those before us, there is no justification for firstly the creation of 17 Out of 19 18 and thereafter the perpetuation of this discriminatory practice. Obviously, this is what prevailed upon the Secretary (Labour) to make a Reference to the Presiding Officer, Industrial Tribunal II, Delhi.
These appeals and Writ petitions along with pending applications are disposed of with a direction to the MCD to treat the workmen/employees as having been regularized in the pay scale of Rs.260400 with effect from 01/04/1980. In other words, they will be entitled to arrears of pay and other benefits for the period 1.4.80 to 1.1.1996, if they were recruited by then.
27) In view of the above order of Hon'ble High court, once it has been held by Hon'ble High court of Delhi that there were no two posts, in MCD in respect to category of post of Mason, carpenters, painter, fitter, blacksmith, operator moulder, turner, welder, wireman, electric mistri Wireman Grade I, Mechanic Setter, Electric Mistry and Electric Motor mechanic and there was only one post, which bears the pay scale of Rs.260400 initially, lateron revised pay scale was Rs.9501500 as per 4th pay scale, no further discussion is required in this aspect and present workman is entitled to get the relief of pay scale of Rs.260400 from the date of his regularization i.e. 01/04/1978. Management had failed to place on record any document or rely upon any judgment, to prove the contrary.
28) In view of my above discussion, the claim of the workman succeeds, reference is answered in affirmative to the effect that Sh Chiranji Lal is entitled to the pay scale of Rs.260400 as revised from 18 Out of 19 19 time to time w.e.f. 01/04/1978 instead of Rs.210270. The management is accordingly directed to place the workman in the pay scale of Rs 260 400, as revised from time to time w.e.f 01/04/1978 and pay the arrears of difference of pay within two months from the publication of award to the workman. The reference is, thus, answered in affirmative. Award is passed accordingly.
29) Copy of this award be sent to GNCT of Delhi for publication.
30) File be consigned to record room. Announced in the open Court on (SHAIL JAIN)
this 25th August, 2018. Presiding Officer,POIT02 Dwarka Court, New Delhi.
Digitally
signed by
SHAIL
SHAIL JAIN
JAIN Date:
2018.08.25
15:31:17
+0530
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