Delhi Jal Board vs The Presiding Officer And Anr.
2003 Latest Caselaw 755 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition by the employer Delhi Jal Board challenges the award dated 18th January, 2000 in I. D. No. 226/1996 passed by the Industrial Tribunal which ordered the regularizing of the respondent No. 2 on the post of Lab Technician from August, 1992. The respondent No. 2 is a graduate in Chemistry from a recognized University and worked as a Lab Technician with the petitioner since 1971. The respondent No. 2 claimed before the Tribunal that he was employed with the petitioner as Lab Technician since 1971 and in between his services were illegally terminated by the petitioner which resulted in the award dated 21st November, 1987 by the Industrial Tribunal in the respondent No. 2's favor directing reinstatement. The said award dated 21st November, 1987 which was unsuccessfully challenged by the petitioner management by filing CWP No. 2768/88 in this Court which was ultimately dismissed in liming on 19th February, 1991. By the said award dated 21st November, 1987 it was held that no charge sheet was given to the petitioner and no compliance of Section 25F of the I. D. Act was made and consequenty this termination of the respondent No. 2's services was illegal and the respondent No. 2 was entitled to reinstatement with full back wage. The respondent No. 2's plea that he was a loyal employee who attended duty even when there was a strike on 10. 7. 1979, and his further plea that while all other employees on strike who were removed from service were taken back, the respondent No. 2 was not taken back, was not effectively denied by the petitioner Jal Board in the proceeding in CWP No. 2768/88.

2. Even after the dismissal of the writ petition on 19th February, 1991, the management allowed the respondent No. 2 to resume duty only as late as 27th January, 1992. It is stated that the management is evading the full implementation of the award and is paying a meagre sum of Rs. 1150/- per month as wages to respondent No. 2 which is less than minimum wages of a Beldar even though the respondent No. 2 is a Science graduate. The respondent No. 2's claim was contested by the petitioner management and the objection on technical grounds such as the wrongful espousal of the dispute was raised. The said objection was not seriously pressed when it was shown that the respondent No. 2's case was espoused by the representative union of M. C. D. and such objection was therefore rightly rejected by the Labour Court. The main thrust of the petitioner's claim on merits raised by Shri Arvind Nayar, the learned counsel for the petitioner is that respondent NO. 2 in his testimony had admitted that he had never worked as Chemist/Asstt. Chemist and filled up the forms for regularisation only in 1992. The counsel for the respondent has pointed out rightly that he fulfillls all the qualifications for the post of Lab. Technician and his claim was not for the post of Chemist/Asstt. Chemist and regularization has also been granted only with effect from 1992 on the post of Lab. Technician.

3. The requisite qualifications prescribed by the petitioner for the post of Lab Technician as per the Recruitment Rules relied upon and annexed by the petitioner are as under:

"Recruitment Rules for the post of Technicians

1. Name of postLaboratory Technician

2. No. of posts10 Nos.

3. ClassificationClass III or equivalent (Schedule II)

4. Scale of pay130-300

5. Whether selection post or non-selectionNon selection

6. Age limit for direct recruitsBelow 18-25 years.

7. Education & other qualifications required for direct recruitsEssential " B. Sc in Chemistry from recognised University. Qualification relaxable at Commissioner's discretion in case of candidates otherwise well qualified. "

8. Whether age & educationalAge : no limit qualifications prescribed for the Qualification : F. Sc. Chemistry direct recruits will apply in the with 3 years experience of case of promotees. Laboratory as Lab. Assistant including the experience of Muster Roll also.

9. Period of probation, if any. One year

10. Method of rectt. whether byBy promotion from Lab. Asstt. direct rectt. or by promotion or failing which by direct recruit transfer and percentage of the -ment. vacancies to be filled by various methods.

11. In case of recruitment by pro-Promotion:-

motion/transfer, grades from whichLaboratory Assistant (110-180)

to be made. 11 Nos.

12. If D. P. C. Exists, what is itsD. P. C. will be constituted as composition. per rules.

13. Circumstances in which UPSC is to be consulted in making rectt. As required under Section 98(2) of DMC Act, 1957 and UPSC (Consultation by DMC) regu lation 1959. "

4. It is not in dispute that the respondent No. 2 is a graduate in Chemistry from a recognized university. Mr. Nayar's contention is prima facie attractive but is not sustainable because the impugned award grants regularisation to respondent No. 2 only on the post of Lab Technician and not on the post of Chemist/Asstt Chemist. Consequently, the respondent No. 2's admission that he did not work as a Chemist/Asstt. Chemist is not material. It is not in dispute that since 1971 up to 1992, respondent No. 2 had worked as a Lab Technician.

5. Mr. Nayar states that for a selection post the regularisation cannot be granted without a D. P. C. In my view the recruitment rules itself show that the post of Lab Technician was a non-selection post and the question of a D. P. C. selection is therefore immaterial. The D. P. C. would only be for a promotee and the petitioner was a direct recruit who had been working as a Lab Technician since 1971. Accordingly, the petitioner's plea that 'Lab Technician' is a selection post is belied by the aforesaid rules relied upon by the petitioner itself. It is not in dispute that the petitioner was qualified for the post of Lab Technician according to the aforesaid rules by being a graduate in Chemistry from a recognized university and there was no age bar as per the recruitment rules. Even if it is assumed that DPC was required to be held, it is not the petitioner's case that any D. P. C. 's were held after 1979 in which the petitioner's name was considered up to 1992 and even up to date. The petitioner cannot deny the benefit of regularization to the respondent No. 2 who has worked in the post of Lab Technician since 1971 by not holding any D. P. C. for more than 21 years even if it is assumed that the post was a selection post, and then plead that the respondent No. 2 can not be regularized in a selection post by not undergoing the selection process as the post in question was a selection post. Further the above extracted rules show that the period of probation was only one year and even though the respondent No. 2 had worked as a Lab Technician since 1971, the regularization has only been granted from 1992. The Tribunal has denied the respondent No. 2 the regularisation prior to August, 1992 as he filled in form only in 1992. Even after 1992, there is no averment that for ten years up to date any D. P. C. was held to consider the claim of the respondent No. 2. Accordingly there is no merit in the writ petition as the Tribunal has rightly relied upon the position of law laid down by this Court and the Hon'ble Supreme Court in granting regularization albeit only from 1992, and the award therefore does not warrant interference. Furthermore, the conduct of the petitioner qua respondent no. 2 has been unjust. Respondent No. 2 pleaded in the earlier award dated 21. 11. 87 of him being a loyal employee who reported for duty on 10. 7. 79 and subsequent dates during strike which plea was not effectively denied. The further plea of the respondent No. 2 that all striking workers were taken back and the petitioner, a loyal worker left out was also not effectively countered. The respondent No. 2 who is a science graduate has been paid a pittance in comparison to his qualifications. Furthermore, in implementing the earlier award in favor of respondent No. 2 there was uncalled for delay from 19th February, 1991 when CWP No. 2768/88 was dismissed by the Court till 27th January, 1992 when the respondent No. 2 was allowed to resume duties. Even in this Court the respondent No. 2 was compelled to file CWP 1872/2002 for implementation of the award dated 18. 1. 2000 when notice was issued by this Court on 3. 4. 2002 and accepted by petitioner on 23rd August, 2002. The present writ petition was only filed obviously as an after thought on September, 2002. Thus the present writ petition filed in September, 2002 challenging the award dated 18th January, 2000 is liable to be dismissed on ground of laches also as there is no satisfactory explanation for the delay. The only reason given in that the panel lawyer was given the file on 31st January, 2002 who misplaced the file till June, 2002. This explanation does not account for two years delay from 18th January, 2000 the date of the impugned award and January, 2002 when the file was handed over to the panel counsel. The writ petition is accordingly dismissed on ground of laches too.

6. Accordingly the writ petition is dismissed both on merits and on ground of laches.