Delhi District Court
I.D. No. 665/16 (Old No.92/12) vs The on 7 February, 2022
IN THE COURT OF SH. JITENDRA KUMAR MISHRA: PRESIDING
OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE AVENUE DISTRICT
COURTS, NEW DELHI.
Ref. No.: F.24(92)/12/ Lab./CD/668
Dated : 30.08.2012
I.D. No. 665/16 (Old No.92/12)
Workman
Sh. Sukhbir Singh Solanki
S/o Sh. Jodha Ram
R/o V.P.O., Shahbad Mohammadpur
New Delhi-110 061
Vs.
The Management of
M/s Delhi Transport Corporation
I. P. Estate, New Delhi
Date of institution : 01.09.2012
Date of reserving award : 27.01.2022
Date of award : 07.02.2022
(MORE THAN 9 YEARS OLD CASE)
AWARD
1.Labour Department, Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Tribunal vide notification No. F.24(92)/12/ Lab./CD/668 dated 30.08.2012 with following terms of the reference:-:-
"Whether the demand of Sh. Sukhbir Singh Solanki S/o Sh. Jodha Ram for giving him all the benefits consequent to I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 1 of 15 giving him benefit of his seniority in the cadre of Senior Clerk w.e.f. 11.01.1986 instead of 07.06.1988 is justified and if so, to what directions are necessary in this respect?"
2. Statement of claim has been filed by the claimant/workman, wherein it is claimed:
(a)The workman was appointed as Junior Clerk on 16.11.1977 in the management;
(b)On 14.10.1985 name of several junior clerks were circulated as suitable for promotion to the post of Senior Clerk in the order of their seniority but name of workman was left out of the seniority list as he had not passed typing test required for promotion;
(c) On 06.11.1985, 09.12.1985, 21.01.1986 and 05.02.1986 several junior clerks were promoted to the post of Senior Clerk and on 04.06.1986 the workman made a representation to the management;
(d)On 24.11.1986 several juniors of the workman were promoted to the post of senior clerk but yet the workman was not promoted;
(e)On 26.03.1987 the representation made by the workman for promotion to the post of Sr. Clerk was rejected;
(f) On 03.06.1988 the workman was promoted to the post of Senior Clerk, but was not given seniority in accordance with his seniority in the cadre of junior clerks;
(g)On 21.07.2008, several Senior Clerks, who would be junior to the workman if he was given seniority in the cadre of senior clerk in accordance with his seniority in the I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 2 of 15 cadre of junior clerk were promoted, were promoted to the post of Assistant Incharge;
(h)On 12.03.2009, 05.11.2009 and 22.01.2010, the workman made representations to the management to grant him promotions in accordance with his seniority since he joined the service but there was no response from the management;
(i) On 06.04.2010, the D.T.C. Workers Unity Centre espoused the cause of the workman;
(j) Thereafter, on failure of the conciliation proceedings, the present dispute has been referred for adjudication before this Tribunal.
It is prayed in the Statement of claim to pass an award in favour of the workman and the management be directed to grant promotion to the workman to the post of Senior Clerk w.e.f. 01.11.1986 in accordance with his seniority in the cadre of junior clerk and grant all the consequential benefits of such promotion w.e.f. 01.11.1986.
3. Written statement filed by the management, wherein objections have been taken:
(a) The workman has no cause of action to file the present claim as he is not entitled any promotion to the post of Senior Clerk as he has not passed the typing test so he was not promoted at that time;
(b) The workman is not entitled to any relief as he has already enjoyed the relief as claimed in his case;
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(c) The claim of workman has not been espoused by any Union;
It is further submitted that the request for promotion of the workman to the post of Senior Clerk from back date is not covered under the rules as he qualified the typewriting test only on 11.01.1986. It is further submitted that it was informed to the workman that he has already been given seniority in the cadre of Junior Clerk w.e.f 23.11.1977. The other employees who were junior to the workman were promoted as they had passed the type test. But the workman could not pass the type test. Representation dated 26.03.1987 made by the workman for promotion is not denied.
Rest of the contentions of the statement of claim more or less are denied.
4. Rejoinder has been filed by the workman, wherein all objections raised in the preliminary objections have been denied and the contentions made in the statement of claim are reiterated and affirmed.
5. On the basis of pleadings of the parties, following issues were framed by Ld. Predecessor vide order dated 10.04.2013:-
"(i) Whether the present claim of the workman has been properly espoused by the Union? OPW
(ii) As per terms of reference."
6. To prove his case, workman examined himself as WW-1.
I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 4 of 15 He tendered his evidence by way of affidavit, which is Ex.WW1/A, in which he has affirmed the contents of his statement of claim. He has also relied upon documents Ex.WW1/B to Ex. WW1/K and Mark WW1/M, which are:-
i. Ex WW1/B being copy of order dated 16.11.1977; ii. Ex WW1/C being copy of order dated 14.10.1985; iii. Ex.WW1/D being copy of order dated 06.11.1985; iv. Ex.WW1/E being copy of letter dated 21.01.1986; v. Ex.WW1/F being copy of order dated 05.02.1986; vi. Ex WW1/G being copy of order dated 24.11.1986; vii. Ex WW1/H being copy of letter dated 26.03.2007; viii. Ex WW1/I being copy of order dated 03.06.1988; ix. Ex.WW1/J being copy of representation dated 12.03.2009; x. Ex.WW1/K being copy of representation dated 06.07.2009; xi. Ex.WW1/L being copy of representation dated 22.01.2010;
On 08.01.2016, Ld. AR for the management had cross examined WW1.
Thereafter, on 06.01.2017, vide separate statement the workman closed workman evidence.
7. To prove its case, management examined Sh. Kanwaljit Singh, Depot Manager at Hari Nagar Depot of the management as MW1. He tendered his evidence by way of affidavit Ex.MW1/A in which he has affirmed the contents of the written statement. He has also relied upon documents Ex.MW1/1 to Ex.MW1/9, which are:-
(i) Ex.MW1/1 being copy of letter dated 21.11.1977;
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(ii) Ex.MW1/2 being copy of letter dated 14.10.1985;
(iii) Ex.MW1/3 being copy of letter dated 06.11.1985;
(iv) Ex.MW1/4 being copy of letter dated 21.01.1986;
(v) Ex.MW1/5 being copy of letter dated 05.02.1986;
(vi) Ex.MW1/6 being copy of letter dated 29.11.1979;
(vii) Ex.MW1/7 being copy of letter dated 24.11.1986;
(viii)Ex.MW1/8 being copy of letter dated 26.03.1987;
(ix) Ex.MW1/9 being copy of letter dated 03.06.1988.
On 16.05.2018 workman cross-examined MW1.
Thereafter, on the same day i.e. on 16.05.2018 vide separate statement, Ld. AR for the management closed management evidence.
8. Vide order dated 16.03.2021, an application U/s VII Rule 14 r/w Section 151 of CPC moved by the management for filing of additional documents, was allowed and accordingly, management examined Sh. Raj Kumar, Assistant Incharge at PLD-II, Section Headquarter of the management as MW2. He tendered his evidence by way of affidavit Ex.MW2/A in which he has stated that at the time of filing of written statement, the management could not file the documents regarding promotion of Sh. Charan Singh. It is further submitted that management circulated a list of 393 employees on 14.10.1985, those were found suitable for promotion to the post of senior clerk, but the name of Sh. Charan Singh was mistakenly left. It is further submitted that since out of 14 SC comm- unity candidates seniority of Sh. Charan Singh was at 3 rd place and I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 6 of 15 his name could not be considered earlier and his suitability not notified despite of SC community vacancy in the category of Senior clerk, in order to avoid violation of Government order on reservation for SC/ST the name of Sh. Charan Singh being a SC candidate was placed before DPC. It is further deposed that earlier the documents were not traceable but the documents were traced out by the management regarding promotion of Sh. Charan Singh and copies of those documents are Ex.MW2/2. MW-2 further relied upon Mark A being copy of identity card of MW2.
On 07.12.2021 Ld. AR for workman cross-examined MW2.
Thereafter, on the same day i.e. on 07.12.2021 vide separate statement, Ld. AR for the management closed management evidence.
9. Final arguments have been heard at length as advanced by Sh. Shanshak Singh, Ld. AR for workman and Sh. Ashok Kumar Mishra, Ld. AR for management.
10. I have gone through the entire record of the case including pleadings of the parties, evidence led and documents proved during evidence.
11. Written submissions have been filed on behalf of the workman, which have been considered.
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12. Ld. AR for workman in the written arguments has submitted that the record of the case shows that after the workman was declared to have passed typing test i.e on 21.01.1986, two orders for promotion of Junior Clerks were passed in the year 1986 i.e. on 5.02.1986 and 24.11.1986. It is further submitted that plea of the management is false that no DPC was held in the year 1986 and thereafter upto year 1988. It is further argued that the management has not pleaded any fact showing what prevented the Management from taking up the case of the workman in DPC held in year 1986 and preventing the management from promoting the workman on 05.02.1986. Ld. AR for workman has further relied upon judgment in matter of OA No. 1849 of 2016 titled as Gurmit Singh Vs Secretary, Ministry of Personnel, Public Grievances and Pension, DOPT and Ors passed by the Hon'ble Central Administrative Tribunal, Principal Bench, Delhi.
At last, it is submitted that management admittedly issued two orders of promotion promoting several employees in the year 1986 itself after the workman was eligible for promotion but did not promote the workman, such an illegal and unjustifiable course needs to be set right by this Tribunal.
13. My issue wise findings are:-
Issue no.1:
"(i) Whether the present claim of the workman has been properly espoused by the Union? OPW"
I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 8 of 15 To prove this issue, workman has deposed in his statement of claim that on 6.04.2010 the DTC workers Unity Centre espoused the cause of the workman. In the affidavit also the same fact has been mentioned. However, no document in support of espousal of the claim has been placed on record. Workman has not proved any resolution/espousal which was passed in favour of the workman. Moreover, no witness has been called from the Union to prove the espousal in accordance with the law. No document has been placed by the workman which shows that whether any DTC workers Unity Centre exists as no supporting document has been placed on record. Further, when that Union was got registered, has also not been mentioned. It is not mentioned as to whether workman was the member of that union. During cross-examination, workman has submitted that he has filed this claim through union. However, surprisingly, no single document has been placed on record which corroborate this fact of the workman. In absence of any subscription receipt, registration certificate or espousal, this Tribunal is of the view that case of the workman has not been properly espoused.
14. In M/s Hotel Samrat vs. Govt. of NCT of Delhi & Ors. 2007 LLR 386 (Hon'ble Delhi High Court), it has been held:-
"12. The dispute between an individual workman and the employer can be treated as an industrial dispute only where the workmen as a body or a considerable section of them, make common cause with the individual workman and espoused his demand. The question arises how the espousal can be inferred. Espousal means that the dispute of an I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 9 of 15 individual workman is adapted by union as its own dispute or a large number of workmen give support to the cause of an individual workman. In the instant case, the only evidence available on record about espousal of the cause is the statement of the Secretary of the Union made before the Tribunal. In his statement, he stated that he requested the management to treat workman Hira Singh at par with other employees and grant him regular pay scale and he met the management for this purpose and on his pursuance, the management started deducting provident fund from salary of the workman Hira Singh. There is no evidence apart from this evidence about the espousal of the cause. Does mere lending of name of the union by the union secretary while raising the conciliation proceedings or for issuing notice amount to 'espousal' of cause'? Union is a representative body of the workmen. The cause of any workman can be espoused collectively by the Executive Body of the union by taking a decision in this respect. This decision may not be taken in a formal manner but can be taken in an informal manner but it has to be a collective decision of the executive body of the union. An individual member of the Executive body cannot take the character of the entire union and cannot bind the union. Merely because the union secretary met the management and requested for giving a regular appointment letter to the workman, would not amount to espousal of the cause. In this case, this is the only evidence available on record in respect of espousal. In J.H. Jadhav's case(supra), the Supreme Court observed that the union must formally express itself in the form of a resolution which should be approved by its members. However, the number of supporting members of the union may be relevant depending upon facts of each case. In 1961 II LLJ 436 Bombay Union of Journalists v. Hindi Bombay, the Supreme Court observed that an individual dispute can take the character of an industrial dispute only if it was proved that it was, before it was referred, supported by union of employees. In each case, for ascertaining whether an individual dispute has assumed character of an industrial dispute, the test is whether on the date of reference, the dispute was taken up and supported by the union of the workmen of the employer against whom the dispute is raised by the individual workman or by an appreciable number of employees. In this case, the Supreme Court observed that notice of the meeting for the purpose of considering request by the members for tenable cause of I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 10 of 15 concerned workmen was not given to the employees of the Hindu Board which were not the members of the union at the relevant time. Hence, by mere passing of a resolution by other members of the union, the case of the appellant that the cause of concern workmen was supported by the other employees of Hindu Board, could not be supported. The Supreme Court observed that unless an individual dispute was taken up by union of employees of the employer or by appreciable number of employees of the union, it remains as an individual dispute and does not become an industrial dispute. In 2001(89) FLR 458 Prakash and Ors v. Superintending Engineer(ELEL) and Ors, the Karnataka High Court observed that an individual can raise a dispute, only for removal, termination or dismissal. If the workman wants to raise a dispute for his absorption and regularization, that can only be done through the union on behalf of workman or workmen."
15. In Tirupathi Cotton Mills Ltd Vs. Labour Court and anr, (1968) II LLJ 723 AP it has been held in para no. 10:
"It is unnecessary to multiply cases Sufficient to say that unless there is a concerned action evidencing indication on the part of a substantial or appreciable number of workmen of the establishment it will be impossible to hold that the dispute, which on the face of it must be regarded as an individual dispute, has been converted into an industrial dispute. It is only then we may assume that it was a collective bargaining on the part of the workers with the employers. This concerned action may as well be evinced by a union which is substantially interested in the dispute as having a large number of members of the employees of that establishment.
16. In J. H. Jadhav Vs. M/s Forbes Gokak Ltd Appeal (Civil) 1089 of 2005 it has been held by Hon'ble Supreme Court as:
"............The definition of "Industrial Dispute" in Section 2(k) of the Act shows that an Industrial dispute means any dispute or difference between an I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 11 of 15 employer 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 the employment or with the condition of labour, of any person. The definition has been the subject matter of several decisions of this Court and the law is well settled. The locus classicus is the decision in Workmen of M/s Dharampal Premchand(Saughandhi) Vs. M/s Dharampal Premchand (Saughandhi) 1965 (3) SCR 394 where it was held that for the purposes of Section 2(k) it must be shown that (1) the dispute is connected with the employment or non employment of a workman (2) the dispute between a single workman and his employer was sponsored or espoused by the Union of workmen or by a number of workmen. The phrase "the union" merely indicates the Union to which the employee belongs even though it may be a Union of a minority of the workmen. (3) the establishment had no union on its own and some of the employees had joined the Union of other establishment belonging to the same industry. In such a case it would be open to that Union to take up the cause of the workmen if it is sufficiently representative of those workmen, despite the fact that such Union was not exclusively of the workmen working in the establishment concerned. An illustration of what had been anticipated in Dharam Pal's case is to be found in the Workmen of Indian Express Newspaper (Pvt.) Ltd Vs. Management of Indian Express Newspaper Private Ltd AIR 1970 SC 737 where an 'outside' union was held to be sufficiently representative to espouse the cause.........."
Hon'ble High Court of Madras in Buckingham and Carnatic Co. Ltd, Madras Vs. Buckingham and Carnatic Mills Staff Union and anr. AIR 1960 Mad 106 in para no. 5 held:
"5. In an early case in this Court, Kandan Textiles vs. Industrial Tribunal, MANU/TN/0159/1951: (1949) NULLLLJ 875 Mad, which was decided by a Division Bench of which one of us was a party, it was definitely held that there could be no collective dispute unless at least a substantial number of the employees in the establishment as a whole or in the concerned part of the establishment should be at dispute. It was also pointed out that it was not necessary I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 12 of 15 that before the Government could make a valid order referring a dispute to the Tribunal the majority of the workmen should be ranged as one of the parties. A collective dispute is thus described:
A dispute between the employer on the one hand and the entire establishment or part of the establishment on the other hand in which case it is reasonable to presume that at least a substantial number of the employees in the establishment as a whole or in the concerned part of the establishment should be at dispute.
In Manager, United Commercial Bank Ltd Vs. Commissioner of Labour, Madras, MANU/TN/0015/1951: (1951) I LLJ 1 Mad, Viswanatha Sastri J, agreed with this view of an industrial dispute and said:
"The distinction between an individual dispute and an industrial dispute is, if I may respectfully say so, well brought out in the judgment of my Lord in MANU/ TN/0159/1951: (1949) NULLLLJ 875 Mad, citing inter alia a passage from the judgment of Isaacs J. in George Hudson Ltd Vs. Australian Timber Works Union, (1922) 32 CLR 413, ....if the resuming workman or a substantial body of them or a union of workmen takes up the cause of the victimised employee and demands his reinstatement, there is an industrial dispute.
In Sri Ram Vilas Service Ltd Vs. State of Madras, AIR 1956 Mad 115, this view was again followed by Rajagopalan J.A different view was however taken, though not by this Court. The point was considered in detail by Venkatarama Aiyer J, in C.P. Transport Service Ltd, Nagpur Vs. Raghunatha Gopal, (S) MANU/SC/ 0067/1956: (1957) I LLJ 27 SC. His Lordship referred to the three different views taken by the High Courts and Industrial Tribunals in the country, namely, (1) a dispute which concerns only the rights of individual workers cannot be held to be an industrial dispute, (2) a dispute between an employer and a single employee can be an industrial dispute and (3) a dispute between an employer and a single employee cannot per se be an industrial dispute but it may become one if it is taken by the Union or a number of workmen. Venkatarama Aiyar J, was of the opinion that there was considerable reason behind the third of the views and the preponderance of judicial opinion was clearly in favour of it.
He observed:
Notwithstanding that the language of Section 2(k) is wide enough to cover a dispute between an employer and a single employee, the scheme of the Industrial Disputes Act does appear to contemplate that the I. D. No. 92/12 (New ID no. 665/16) Sukhbir Singh Solanki Vs. DTC Page No. 13 of 15 machinery provided therein should be set in motion, to settle only disputes which involve the rights of workmen as a class and that a dispute touching the individual rights of a workman was not intended to be the subject of an adjudication under the Act, when the same had not been taken up by the Union or a number of workmen.
6. In another case, namely, Newspapers Ltd Vs. State Industrial Tribunal, U.P(S) MANU/SC/ 0078/1957:
(1957) II LLJ 1 SC, the Supreme Court expressly approved the view taken by this Court in MANU/TN/0159/1951: (1949) NULLLLJ 875 Mad and other cases following it.
17. Therefore, in view of law discussed here-in-above and observations made herein, this Tribunal is of the considered view that workman is not able to prove that his claim was properly espoused by the Union. Rather, it is also observed that even the espousal in favour of the workman has not been proved as no document has been brought by the workman regarding espousal. Hence, issue no. 1 is answered against the workman.
Hon'ble High Court in para no. 14 of Management of Hotel Samrat Vs Govt of NCT and ors(supra) has held that Tribunal has jurisdiction to adjudicate only an industrial dispute. When this Tribunal came to the conclusion that the cause of the workman was not espoused, then, the Tribunal lost its jurisdiction to adjudicate the dispute since no industrial dispute exists. Therefore, in this case also, this Tribunal has decided issue of espousal against the workman, thus, regarding deciding of other issues, this Tribunal has lost its jurisdiction.
Keeping in view the observations made herein-above, reference is also answered against the workman.
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18. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in open Tribunal
on this 7th day of February, 2022
Digitally signed
JITENDRA by JITENDRA
KUMAR KUMAR MISHRA
Date: 2022.02.07
MISHRA 04:22:39 +1030
(Jitendra Kumar Mishra)
POITI/Rouse Avenue Courts,
New Delhi
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