Mcd vs Raj Kumar
2011 Latest Caselaw 5899 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                         W.P.(C) 11737/2009


+                            Date of Decision: 2nd December, 2011

#       MCD                                              ....Petitioner
!                    Through:        Ms. Saroj Bidawat, Advocate

                                  Versus


$       RAJ KUMAR                                     ....Respondent
                                Through: Mr. Rajiv Agarwal, Advocate


       CORAM:
*       HON'BLE MR. JUSTICE P.K.BHASIN

                                 JUDGMENT

P.K.BHASIN, J: (ORAL) By filing this writ petition the petitioner-management seeks to challenge the award dated 24th March, 2009 passed by the Industrial Tribunal whereby the respondent-workman, who was working as a Garden Chaudhari with the petitioner, was held entitled to be promoted to the post of Section Officer from the date other Garden Chaudharies, who were juniors to him, had been promoted. He was given all consequential benefits also.

2. The relevant facts are not much in dispute. The respondent- workman was appointed as a Garden Chaudhari on daily wage basis in the year 1978. He was retained as a daily wager for many years which

led to raising of an industrial dispute by him for his regularization. That dispute was referred to the Industrial Tribunal where it was registered as I.D. No. 173/1995. Vide award dated 10th July, 2000 the Industrial Tribunal accepted the claim of the respondent-workman and directed his regularization as a Section Officer with effect from 2nd July, 1984. That award was challenged by the petitioner herein but its writ petition (being writ petition no. 1233/2002) was dismissed on 29th September, 2003.

3. In the meanwhile, nine Garden Chaudharies, who were admittedly juniors to the respondent-workman herein, had been given ad hoc promotions as Section Officers vide office order dated 29 th September, 2000 to take effect from 3rd May, 1997. The respondent herein was, however, not given the benefit of even ad hoc promotion. That discriminatory attitude of the petitioner-management led to the raising of another industrial dispute by the respondent-workman. That dispute was also referred to the Industrial Tribunal and vide impugned award dated 24th March, 2009 the learned Industrial Tribunal has, as noticed already, made the award in his favour which is now under challenge at the instance of the petitioner-management.

4. I have heard learned counsel for the parties. The only point raised by the learned counsel for the petitioner-management is that the junior Garden Chaudharies were given ad hoc promotions as Section Officers since they were already looking after the work of the post of Section Officer in addition to their duties as Garden Chaudharies in their own pay-scales while the respondent herein had not been looking

after the work of Section Officer. However, in my view, this was no justification for ignoring him for even ad hoc promotion which was given to nine Garden Chaudharies who were admittedly junior to him. The dispute herein between the parties was not as to why other garden chaudharies were promoted but the dispute was when the persons junior to the respondent were given ad hoc promotions why he was ignored. Therefore, the respondent-workman was justified in asking for the relief which his juniors had got vide office order dated 29 th September, 2000. No justification was given in that regard by the petitioner-management before the Tribunal and so the reason given by the counsel for the petitioner before this Court that the respondent was not given ad hoc promotion since he was not doing the additional work of Section Officer, as was being done by his juniors, cannot be entertained. So, the respondent was rightly held entitled to be treated at par with his juniors.

5. However, a perusal of the impugned award shows that the learned Industrial Tribunal has proceeded to consider the matter as if the nine persons who were junior to the respondent had been given regular promotions while in fact that was not the position. The fact that they had been given only ad hoc promotions appears to have gone unnoticed and that has resulted into passing of the award for regular promotion of respondent-workman to the post of Section Officer. Learned counsel for the respondent-workman, however, very fairly submitted that the only relief which he wanted was parity with nine persons junior to him and even now he is not claiming anything more

than what his juniors had got and this Court can clarify that the only relief which the respondent could have got was the relief which his juniors had got. Therefore, to that extent the Industrial Tribunal's award under challenge has to be modified.

6. This writ petition is accordingly partly allowed. The impugned award is modified to the extent that the respondent-workman is held entitled to get only ad hoc promotion as a Section Officer as was given to the nine Garden Chadhries named in the office order dated 29th September, 2000.

P.K. BHASIN, J DECEMBER 02, 2011/pg