Delhi High Court
North Delhi Municipal ... vs Lalit Sharma on 25 March, 2022
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
$~1 (2020)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25th March, 2022
+ W.P.(C) 8612/2019, CM APPL. 14911/2022 & REVIEW PET.
79/2022
NORTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms. Namrata Mukim, Standing
Counsel for NrDMC and Ms. Garima
Jindal with Mr. Ravi Kant,
Radiographer and Mr. K.C. Mittal
(Retd. Consultant) (M:9899106515)
versus
LALIT SHARMA ..... Respondent
Through: Mr. Sanjoy Ghose, Sr. Adv. with Ms.
Meghna De, Advocate for Union
along with Mr. Surendra Bhardwaj,
Secretary /Union
Respondent-in-person
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by the North Delhi Municipal
Corporation (hereinafter "Corporation") challenging the impugned award
dated 1st February, 2019 passed by CGIT-cum-Labour Court No.1, Dwarka
Court, New Delhi in ID No. 11/2013 titled Shri Lalit Sharma v. The
Management of the Municipal Corporation of Delhi. Vide the said award,
the Respondent/Workman (hereinafter "Workman") was granted
appointment on compassionate grounds on the post of TB health visitor or
any other suitable clerical post keeping in view the Workman's educational
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
qualification. The operative portion of the said order reads as under:
"16- In view of the above discussion, it emerges that
although the claimant herein in view of his
qualification was eligible for appointment on
compassionate ground to the post of TB Health
Visitor, however, the Committee of the Management
has rejected the application of the claimant herein
only for lack of sufficient vacancy of TB Health
Visitor. Even if it is assumed and admitted that there
was no sufficient vacancy of TB Health Visitor at the
given point of time when the application of the
claimant herein was considered by the Screening
Committee of MCD, in that eventuality also it was
moral and legal obligation on the part of the
Management to consider and offer the claimant for
any suitable post lying vacant at that time or
subsequent thereto but nothing of the sort has been
done by the Management for the reasons best known
to it. As mentioned above, the office of MCD vide its
reply dated 30/9/2010 under RTI Act (Ex.WW1/20)
has conveyed that 8 Nos. of posts of TBHVs are
lying vacant as on April, 2010 under the office of
Addl. DHA(TB).
17- Having regard to the overall facts and
circumstances of the case, as discussed above, this
Tribunal is of the considered view that the action of
the Management in not giving appointment to the
claimant for any suitable post on compassionate
ground is neither legal nor justified.
Relief :-
18- As a sequel to the aforesaid discussion, the
Management is directed to give appointment to the
claimant Lalit Sharma on compassionate ground, for
the post of TB Health Visitor or any other suitable
clerical post keeping in view his educational
qualification, within two months, from the date of
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
publication of this Award. The Award is passed
accordingly.
3. The background of the litigation is that one Sh. Charanjeet Singh
Sharma was working in the Health Department of the erstwhile Municipal
Corporation of Delhi as a TB health visitor, as a regular employee since
1976. He unfortunately passed away on 8th October, 2004. In March 2005,
the Workman applied for appointment on compassionate grounds on the
post of regular TB health visitor. At the time when he applied, he filled
various forms stating that he was not employed anywhere. From the records,
it is clear that his application is replete with statements that there is no
person in his family who is employed or earning. His mother Ms. Bhagwati
stated in her affidavit that her son, i.e., Workman, is unemployed. The
affidavit reads as under:
"I, Smt. Bhagwati Wd/o late Sh. Charanjit
Singh Sharma R/o 3/7 MCD, Colony, Model
Town III, Delhi, do hereby solemnly affirm
and declare as under:-
1. That my husband Sh. Charanjit Singh
Sharma had died on 8.10.2004 who was
worked with T.B.C.O (Health Deptt.) as a
Tuber Closis Health Visitor posted at Lal
Bagh Dots Centre, under R.B.T.B. Hospital
K.W. Camp Delhi.
2. That Mr. Lalit Sharma age 26 years S/o
late Shri Charanjit Singh Sharma is my son
and who is unemployed and I have fully
depend upon him.
3. That my elder son Lovelinder Kumar age
28 yrs is married and living separately since
2 years.
4. That I undertake not to take second
marriage
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
5. That I have no source of income.
6. That I have no objection if my said son
shall joined the service on compassionate
ground in place of my husband service."
4. In the column of the application where he was asked if he is
employed, the categorical answer of the Workman is 'नह 'ीं . In his own
affidavit, the Workman stated that he has no earning source and it has
become very difficult to survive. The said affidavit which is dated 9th
February, 2005 reads as under:
"I, Lalit Sharma S/o Late Sh. Charanjit Singh
Sharma, R/o 3/7 MCD Colony, Model Town-III,
Delhi-110009, do hereby solemnly affirm and
declare as under:
1. That my father Sh, Charanjit Singh Sharma was
Working as T.B. Health Visitor under T.B. Control
Office, Gulabi Bagh and deputed for duty of K.C.C.
R.B.T.B. Hospital, Kingsway Camp, Delhi, who died
on 08/10/2004, at Hindu Rao Hospital Delhi.
2. That after the death of my father, there are no
any earning source and member in our family,
which has become very difficult to survive.
3.That no any movable and immovable property.
4.That we are living on rent in Govt.
Accommodation.
5.That father was survived by the following legal
heirs:-
S.No Name of Legal heir Age Marital Status Relation
1 Smt Bhagwati 57 yrs. Widow Wife
2 Lalit Sharma 26yrs. Unmarried Son
3 Lovelinder Kumar 28yrs. Married Son
4 Vijay Sharma 36yrs. Married Daughter
6.That after the death of my father I have applied for
the service on compassionate grounds.
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
7.That my mother, Brother and Sister have
furnished, their no objection for granting me the
service on compassionatory grounds.
8.That the service on compassionate grounds
please be given to me because we no have any
earning source. No House and No Roof for
serviving.
9.That it is my true statement."
5. The Corporation considered the application of the Workman for
compassionate appointment but rejected the same. An industrial dispute was
raised by the Workman through the Hospital Employees' Union (hereinafter
"Union") in 2013 under Section 2A of the Industrial Disputes Act, 1947. In
the said proceedings before the CGIT, the Union, which was espousing the
case of the Workman, and the Workman repeatedly told the CGIT that he
was unemployed and at no point in time was there any disclosure of the fact
that he had any kind of employment. This is clear from a reading of the
following pleadings and documents before the CGIT:
i. Affidavit of Mr. Lalit Sharma dated 28th September, 2013:
" 4.The deponent submits that the family of the
deceased was completely dependent on the
workman Shir Charanjeet Singh Sharma as he
was only bread earner of the family. Now after
death of the workman the family of the deceased
have reached to the verge of starvation.
5. The deponent submits that he is eligible for
appointment on compassionate ground on any
suitable post and he is totally unemployed. It is
further submits that the deponent has also
successfully done T.B. Health Visitor Course.
6. The Deponent submits that the denial of
appointment on the compassionate ground is
totally illegal, bad, unjust."
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
ii. Cross examination of the Workman before the CGIT:
"I am doing tuition business these days. I earn a
sum of Rs.2500-3000 a month. My wife is also doing
tuition business. She also earns a sum of Rs.3000.00
a month. I manage my kitchen by the said amount.
Besides that, wheat is being received from my native
village. I am well versed in computers and having
various certificates in that regard. I applied against
various posts but could not get any job. It is
incorrect that I was not financially dependent on my
father at the time of his death. It is incorrect that
present dispute has been raised by me only with a
view to get a Government job. I have not filed any
document in order to show that our family was
destitute and I am in need of this job. My mother is
not well but I had not filed any medical certificate in
that regard. It is incorrect that I had not filed any
document alongwith the application moved for
compassionate appointment, hence my application
was rejected by the management. It is incorrect that
my claim is false."
6. A perusal of the record also reveals that the statement of claim was
signed by the General Secretary of the Union. In the said statement of claim
on behalf of the Workman filed by the Union, it is categorically stated that
the Workman is totally unemployed. The relevant portion of the statement of
claim reads as under:
"4. That the family of the deceased was
completely dependent on the workman Shri Charanjeet
Singh Sharma as he was only bread earner of the
family. Now after death of the workman the family of
the deceased have reached to the verge of starvation.
5. That Shri Lalit Sharma is eligible for
appointment on compassionate ground on any suitable
post and he is totally unemployed. It is pertinent to
mention here that Shri Lalit Sharma has also
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
successfully done T.B. Health Visitor Course."
7. Mr. Surender Bhardwaj, Secretary of the Union in his affidavit states
as under:
"3. The deponent submits that as the workman
concerned, approached our union for securing his
appointment on compassionate ground on any suitable
post on regular basis in proper pay scale and
allowances with retrospective from the date of death of
his father." Consequently, a resolution was also
passed in the meeting of union held on 08.10.2008. A
copy of said resolution is already on record marked as
Ext. WWR/4.
4.The deponent further submits that Sh. Rajiv Agarwal
is the General Secretary of Hospital Employees Union.
I am also part and parcel of the Hospital Employees'
Union since last many years and as such I have seen
Sh. Rajiv Agarwal writing and signing and as such, I
can identify the signature.
5. The deponent submits that, as such the case of the
workman concerned was duly espoused by our union
and as such our union is pursuing for redressal of
grievance of the workman concerned."
8. On the basis of the representations made by the Workman and the
Union, that he was unemployed and that his family was destitute, the CGIT
granted compassionate appointment vide the impugned award.
9. In this writ petition, on the first date, i.e., 7th August, 2019,
submissions were made before the ld. Predecessor Bench by the ld. Counsel
for the Corporation that the Workman is already employed with Babu
Jagjivan Ram Memorial Chest Clinic, Jahangirpuri since 4th December,
2004. Hence the Court has directed the Workman to remain present in the
court. The relevant part of the order reads as under:
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
"4. Learned counsel for the petitioner submits
that the respondent raised a false claim before
the petitioner as well as before the Industrial
Tribunal that he was unemployed. It is submitted
that the petitioner found that the respondent is
already employed with Babu Jagjeevan Ram
Memorial Chest Clinic, Jahangirpuri since 04th
December, 2004. It is submitted that the
respondent is liable to be prosecuted for raising
a false claim under Section 209 of the Indian
Penal Code. In view of the submissions made,
the operation of the impugned award shall
remain stayed till the next date of hearing."
10. Thereafter directions were issued to the Workman vide order dated
15th November, 2019 to file his affidavit along with educational
qualifications and employment details. The said affidavit was also filed on
4th March, 2020. In the said affidavit the Workman gave details of its
educational qualifications but again took the plea that he looked for
employment but to no avail.
"4. That the Respondent worked as Tuberculosis
Health Visitor with the Delhi Tuberculosis
Association under the WHO-DTA Project from
19.07.2001 to 31.10.2001. That the Respondent also
worked as Health Worker from 11.09.2002 to
09.01.2003 in Voluntary Health Association of
Delhi. Copy of experience certificate from Delhi
Tuberculosis Association and Voluntary Health
Association of Delhi is annexed herewith as
ANNEXURE R-1 (COLLY).
5. That the death of the father of the Respondent on
08.10.2004 caused sudden loss of income to the
family of the Respondent. That during the pendency
of the application for appointment of the Respondent
on compassionate basis and subsequently during the
pendency of dispute raised by the Respondent for
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
appointment on compassionate basis, the
respondent and his family were on the verge of
starvation. That the Respondent looked for
employment to the best of his abilities but to no
avail. That the respondent has offered his services as
Health Worker/Visitor to various projects.
Xxx Xxx Xxx
8. That the Respondent is not employed with any
organisation but has been providing his services as
a Contractor. That the Respondent has not worked
in a post in any Government
Department/Organisation and cannot be termed as
gainfully employed and he cannot to be termed to be
employed in any establishment."
11. Thus, the plea of the Workman was that he was not employed with
any organization and was merely a Contractor.
12. On 21st February, 2022, after perusing the documents on record, the
Court had directed personal presence of the Workman on the next date of
hearing, i.e., 22nd February, 2022. On the said date upon being enquired by
the court, the Workman stated as under:
"2. The Respondent/Workman (hereinafter
"Workman") is physically present in the Court
today in compliance with the order passed by this
Court yesterday, i.e., 21st February 2022. On being
queried by the Court, he states the following:
a) He has been employed at the Integrated
District Health Society attached to the Babu
Jagjivan Ram Memorial Hospital as a Senior TB
Supervisor (STS) on contract basis with renewal of
contract from time to time since 4th December, 2004
till date. At the time of appointment, his salary was
Rs.6,000/-.
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
b) On being questioned as to why he did not
disclose the fact of his contractual employment in
March, 2005 when he filed the application for
compassionate appointment, he states that he was
advised by the people in MCD who were colleagues
of his father that since it is contractual
employment, the same need not be mentioned in
the application for compassionate appointment. He
further states that he had also informed the
Hospital Employee Union (hereinafter "Union")
about his employment as it is not a thing which he
could hide.
c) He submits that he has three children and
his mother passed away in 2017. His current salary
is more than Rs.40,000/- per month.
d) On being asked as to whether he is still
insisting on the compassionate appointment in the
NDMC, he states that irrespective of whether he gets
the compassionate appointment or not, he does not
wish to lose the job which he presently has.
e) When asked to explain as to why he did not
disclose the details of his employment before the
Labour Court, he submits that he orally told the
same to the Court. When asked as to why he did not
disclose in his cross-examination that he was
employed, he submits that it was by mistake."
13. This Court on the said date noticed that the Workman took a stand
that he had informed the Union of his employment. The Court further
noticed that the General Secretary of the Union was also representing the
Union before the Court as the counsel on behalf of the Workman. Clearly,
there was a mismatch between the stand of the Workman and the Union. A
plea was sought to be taken that since the Workman was only contractually
employed, the same did not constitute employment and hence was not to be
disclosed.
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
14. The certificate issued by the Integrated District Health Society- North
District attached with Babu Jagjivan Ram Hospital makes it very clear that
the Workman, though stated to be on contract basis, has been working from
2004 till date as an STS at the Babu Jagjivan Ram Memorial Chest Clinic
Jahangirpuri under Integrated District Health Society-North District and his
total gross salary per month is Rs.34,579/-. The extract of the certificate
issued by the health society reads as under:
"This is to certify that Mr. Lalit Sharma is working
as STS at BJRM Chest Clinic Jahangirpuri under
Integrated District Health Society - North District
(on Contract basis) with renewal of contract from
time to time. He has been working since 04-12- 2004
to till date.
His current remuneration for the month of June
2019 is as follows:
Govt.of India State Govt. Total Gross
Salary per Share per Salary drawn
month month per month
27,929/- 27,929/- 34,579/-
This department is not responsible for any legal
dispute or financial liability undertaken by the
official.
This certificate is issued on request received from
DTO BJRM Chest Clinic in r/o High Court Matter
vide letter no. AO (Health)/NDMC/2019/118, dated
26.06.2019"
15. After having noticed these facts, this Court directed as under:
"12. All these facts clearly appear to be well within
the knowledge of the Workman, the office bearers of
the Union as also the various representatives for the
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
Workman, including the ld. counsel for Workman,
however, there has been a clear concealment of
material facts leading to the Labour Court passing
the impugned award dated 1st February, 2019 by
which compassionate appointment has been directed
to be given to the Workman.
13. The ld. counsels, at this stage, submit that they
do not have the lower court record. Let the
electronic copy of the lower court record be made
available to the ld. counsel for the parties upon
request.
14. Mr. Surender Bhardwaj, Secretary of the Union
who deposed on behalf of the Workman is directed
to be physically present before the Court on the next
date. In case, Mr. Bhardwaj, is no longer the
Secretary of the Union, the present General
Secretary of the Union shall, in addition, be also
present before the Court. The General Secretary of
the Union shall be served at: Hospital Employees
Union, Agarwal Bhawan, GT Road, Tis Hazari,
Delhi-54. Mr. Surender Bhadwaj, shall be served on
his mobile Number- 9873376166."
16. Today, Mr. Surender Bhardwaj, the Secretary of the Union has
appeared before the Court in person. An application has also been moved on
behalf of the Union seeking review of the order dated 22nd February, 2022.
Ld. counsels appearing for the Workman made submissions that they would
like to seek discharge in the matter in order to avoid any conflict. However,
since Mr. Ghose, ld. Senior Counsel is representing the Union, he was asked
to assist for the workman as well. The Court has heard the submissions of
Ms.Mukim and Mr. Ghosh.
17. Mr. Surender Bhardwaj's stand is that the Workman never informed
him or the Union that he was employed on a contractual basis. Upon being
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
queried, even today the Workman contradicts Mr. Bhardwaj and submits
that the he informed the Union about his employment.
18. From the facts that emerge, it is clear that all is not well in the manner
in which the matter has proceeded all through since the time of filing of
application for compassionate appointment. The Workman has resorted to
falsity since inception, i.e., the filing of the application giving of incorrect
information, non-disclosure of all particulars of his employment and an
impression has been sought to be portrayed that the Workman was in penury
and his family was destitute, while the actual fact was that the Workman
was working in a government institution during this entire period. The
explanation given by the Workman today is that he was told by some
employees of the Corporation and by the Union that since he was under
contractual employment the same would not be construed as regular
employment and need not be disclosed at the time of filing the application
for compassion appointment. The exact truth of the statement obviously
cannot be ascertained by this Court at this stage of these proceedings as the
same is in the realm of past events, of which the Workman claims to state
his own version. On the other hand, the Secretary of the Union who had
signed the espousal before the CGIT, is in the Court and takes a position that
the Workman had neither informed him nor the Union of the fact that he was
employed.
19. The purpose of compassionate appointment is to help and support the
family of a deceased employee who may be in dire need. This Court cannot
condone the fact that there has been misrepresentation and concealment on
behalf of the Workman and Union in this matter. Moreover, the fact that the
ld. counsel appearing for the Union is also General Secretary of the Union
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
also blurs the distinction between the client and the advocate which ought
not to ideally happen. The Workman has clearly given misleading affidavits
before this Court which have been espoused by the Union and its ld. counsel
before the Court. The entire turn of events is clearly not palatable. While in
general, workmen's applications for compassionate appointment deserve
sympathetic consideration, they cannot be permitted to mislead and make
false statements. The Workman in this case ought to have candidly disclosed
in his application for compassionate appointment that he has some sort of
contractual appointment and then sought regular employment from the
Corporation. Such a stand would have been fair and truthful. Concealing the
entire factum of employment in another government institution from the
Corporation and the Court is clearly deliberate and cannot be held to be
innocent.
20. The Union and its representatives ought to also have been careful in
this matter while prosecuting the application on behalf of the Workman.
There was also some responsibility on the part of the ld. Counsel who was
the General Secretary and Secretary of the Union to also ascertain the true
facts and present them in a proper manner.
21. The Workman submits that he does not wish to press his application
for compassionate appointment with the Petitioner corporation so long as he
can retain his employment in Jagjivan Ram Memorial Hospital where he is
already employed.
22. The Workman is a qualified person who has the necessary educational
background to work as a TB health worker. This Court, while having come
to the conclusion that there has been suppression and misrepresentation on
behalf of the Workman, however, does not wish to jeopardize his entire
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
career and the well-being of his family. The Workman is only 42 years of
age and also has his wife and children to take care of.
23. Under these circumstances, the following directions are issued:
i. The application for compassionate appointment filed on behalf
of Mr. Lalit Sharma, the Workman, by the Hospital Employee
Union shall stand withdrawn as stated by the Workman today in
the Court.
ii. The Workman shall deposit a sum of Rs.60,000/- with the
DHCBA Pandemic Relief Fund [A/c No.15530110152195,
IFSC Code- UCBA0001553, UCO Bank, Delhi High Court]
within four weeks for the misrepresentations made by him to
this Court and the CGIT qua his employment status. The Court
has desisted from taking any further action against the
Workman owing to his family background and his age,
however, the Workman is warned that he ought not to indulge
in such conduct in future.
iii. This Court does not appreciate the stand of the Union that it
was never aware that the Workman was employed. The
Workman's statement to the contrary that he had informed the
Union, was recorded on the last date and the same stance is
reiterated by the Workman today as well in the Court. The
Union is accordingly directed that in future whenever espousal
of cause is taken up on behalf of any Workman, especially for
compassionate appointment or any other similar application,
before the Management or before the Labour Court/CGIT, the
correct facts shall be ascertained regarding the employment
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:01.04.2022
05:17:58
status contractual or otherwise, of the applicant. In the present
case, the Union has more than 3000 members. It is an active
Union which ought to be careful so as to ensure that wrong
facts are not placed before this Court or the Labour Courts and
CGIT. Accordingly, costs of Rs.50,000/- shall be deposited by
the Union with the Corporation within four weeks. The Union
shall ensure that such conduct is not repeated in the future.
23. Since the Workman has withdrawn the application for appointment on
compassionate grounds, the impugned order of the Tribunal is set aside.
24. It is clarified that the Workman's current employment in Babu
Jagjivan Ram Hospital shall not be jeopardized in any manner due to
passing of the present order.
25. The writ petition, along with all pending applications, is disposed of
in the above terms.
PRATHIBA M. SINGH
JUDGE
MARCH 25, 2022/aman/sk
(corrected & released on 31st March, 2022)
