Municipal Corporation Of Delhi vs Shri Rajesh
2009 Latest Caselaw 4549 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C.) No. 12996/2009 and C.M. No. 13932/2009 (for stay)

%                 Date of Decision: 09th NOVEMBER,2009


#     MUNICIPAL CORPORATION OF DELHI                      .....PETITIONER

!                 Through:   Mr. Gaurang Kanth, Advocate.

                                   VERSUS

$     SHRI RAJESH                                       .....RESPONDENT

^                 Through:   NEMO.


CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? NO

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported in the Digest? NO

S.N.AGGARWAL, J (ORAL)

The MCD in this writ petition seeks to challenge an industrial award

dated 12.05.2008 in I.D. No. 37/2008 directing it to treat the respondent

as appointed in the regular pay scale with effect from the date of his

initial appointment, i.e. 31.03.2003 and grant him all consequential

benefits.

2. Heard on admission.

3. The respondent workman was appointed by the petitioner as Safai

Karamchari on compassionate grounds vide appointment letter dated

31.03.2003. His appointment was described as appointment on daily

wage basis. Admittedly, the appointment of the respondent workman

was on compassionate grounds after the death of his father Dharam

Singh on 15.01.2001.

4. Mr. Gaurang Kanth, learned counsel appearing on behalf of the

petitioner, has referred to the appointment letter of the respondent

workman (Exhibit WW-1/2 at page 36 of the Paper Book) to contend that

the respondent workman was appointed as daily wager specifically

mentioning it in his appointment order that the case of the respondent

workman for his regular appointment on compassionate grounds is being

considered separately as per rules. The contention of the learned

counsel appearing on behalf of the petitioner is that, in case, the

impugned award is allowed to stand, then a daily wager will be made a

regular employee without following the due process.

5. There is no substance or merit in this submission made on behalf of

the petitioner. This was not the case of the petitioner in its written

statement filed before the Labour Court that it was still considering the

case of the respondent workman for his appointment on compassionate

grounds on regular basis separately as per rules. This contention is

raised before this Court for the first time. It is not disputed by the

learned counsel appearing on behalf of the petitioner that the

appointment of the respondent workman was on compassionate grounds.

His appointment came in place after more than two years of the death of

his father Dharam Singh.

6. It sounds strange that the petitioner was still considering the case

of the respondent for his regular appointment on compassionate grounds

even after two years of the death of his father. In the opinion of this

Court, two years time after the death of the father of the respondent was

a sufficient time with the petitioner to decide whether the respondent

was entitled to appointment on compassionate grounds under the rules

or not.

7. On being repeatedly asked, the learned counsel appearing on

behalf of the petitioner, could not show that the rules for appointment on

compassionate grounds provide for appointment on daily wage basis.

Once the petitioner had appointed the respondent on compassionate

grounds it amounts to an admission on the part of the petitioner that the

respondent was entitled for compassionate appointment. Compassionate

appointment could have been made only on regular basis and not on

daily wage basis.

8. It shall be significant to mention that the witness of the petitioner

itself namely WW-1 Surinder Singh has admitted two important facts in

his cross-examination, one that the appointment of the respondent vide

appointment letter (Exhibit WW-1/2) was against a vacant post and the

second admission made by him is that the respondent all along had been

discharging the similar nature of work as discharged by his deceased

father and he possess the same qualification as possessed by his

deceased father.

9. Under the circumstances, I do not find any illegality or perversity in

the impugned order holding that the respondent is entitled to be treated

as regular employee with effect from the date of his initial appointment,

i.e., 31.03.2003. This writ petition, therefore, fails and is hereby

dismissed in limine. The stay application is also dismissed.

NOVEMBER 09, 2009                                     S.N.AGGARWAL, J
'BSR '