JAWAID TAUHIDI vs DTC

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 16th April, 2024
+ W.P.(C) 1282/2011
JAWAID TAUHIDI ….. Petitioner
Through: Mr.Ravindra S.Garia, Mr.Shashank Singh and Mr.Madan Chandra Karnataka, Advocates

versus
DTC ….. Respondent
Through: Mrs.Avnish Ahlawat, Standing Counsel for DTC with Mr.Nitesh K.Singh, Ms.Laavanya Kaushik, Ms.Aliza Alam and Mr.Mohnish Sehrawat, Advocates
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
1. The instant writ petition has been filed by the petitioner under Article 226 of Constitution of India seeking the following reliefs:
“i) Set aside the award dated 23.3.2010 passed by the Ld. Labour Court at Karkardooma in case I.D. No. 307/2004
ii) Issue/appropriate writ/direction, directing the respondent to promote the petitioner on the post of Body Fitter with retrospective effect from 15.4.1983 when his juniors were promoted to the above said post with all other consequential benefits and seniority.
iii) Pass any other order/direction which may be deemed fit and proper in the interest of justice.”
2. The relevant facts necessary for the adjudication of the instant petition are reproduced herein below:
a. The petitioner worked with the respondent management/Delhi Transport Corporation as an Assistant Body Fitter since the year 1978.
b. The junior employees within the same service were promoted vide order bearing PLD-3-11(56)/83/4839, dated 15th April, 1983, and the petitioner was notably excluded from this promotion in the said order.
c. Thereafter, the petitioner sent a demand notice to the Management on 19th June, 2003 and subsequently, the said issue was raised before the Conciliation Officer but to no avail.
d. Pursuant to which, the petitioner workman raised an industrial dispute and accordingly, the industrial dispute was referred by the Government of Delhi in following terms:
“Whether the promotion of the petitioner to the post of Body Fitter for which a claim petition was filed before the learned Labour Court, Karkardooma, Delhi”

e. In the above said industrial dispute bearing I.D. No. 307/2004, the learned Labour Court vide award dated 23rd March 2010 held that the workman was assessed as an average and irregular employee and the Department Promotion Committee (hereinafter “DPC”) cannot be expected to recommend such a candidate for promotion, and thus, held the workman not entitled for promotion.
f. Aggrieved by the impugned award, the petitioner has filed the instant petition seeking quashing of the same.
3. Learned counsel appearing on behalf of the petitioner submitted that the impugned award is bad in law and has been passed without considering the facts and circumstances available on its record.
4. It is submitted that the petitioner was entitled for a promotion w.e.f. 15th April, 1983, however, he was informed by the respondent management that he was not promoted with his juniors due to a mistake and he would be granted a promotion with retrospective effect.
5. It is submitted that the petitioner has suffered substantial financial loss due to him not being promoted while his juniors were promoted. It is further submitted the respondent management did not peruse the confidential file of the petitioner for promotion purposes.
6. It is submitted that the principles of seniority-cum-fitness adopted by DPC do not require considerations of Annual Confidential Reports (hereinafter “ACRs”) and as per paragraph no. 6 of the Memorandum of Settlement, for the promotion of a technical staff, a trade test shall be held for judging the suitability for promotion.
7. It is contended that such remark “irregular in attendance” should not have been made in the ACRs of the workman for the years 1981 to 1983 as the leaves were taken by the petitioner on medical grounds and that he had duly produced the records of his medical treatment before the respondent corporation.
8. It is further submitted that the ACRs from the year 1981 to 1983 were never communicated to the workman, therefore, the same cannot be relied upon by the learned Tribunal.
9. It is submitted that despite directions by the learned Industrial Tribunal, the respondent neither produced the record of Communication of ACRs for the year 1981 to 1984 to the workman nor produced record of proceedings of DPC of the year 1984 to demonstrate that the name of the workman was considered by the DPC.
10. It is contended that the learned Tribunal erred in holding that when the criteria of fitness for technical categories has been prescribed as trade test, fitness of a person cannot be assessed again on any parameter by the DPC or the respondent.
11. It is submitted that the learned Tribunal failed to appreciate that the un-communicated ACRs cannot be taken into consideration. In view of the aforesaid submissions, the learned counsel for the petitioner prayed that the instant petition may be allowed and the reliefs as sought may be granted.
12. Per Contra, the learned counsel for the respondent management vehemently opposed the averments made in the instant petition and submitted that the petitioner was considered for promotion in the year of 1983 and for the same purpose, his ACRs for the years 1981-1983 were examined.
13. It is further submitted that the reports demonstrate that the petitioner was marked as ‘average’ under all columns in his assessment and the most irregular workman in the facility, and hence, he was not suitable for promotion. The same implies that the DPC did not find him eligible for a promotion.
14. It is further submitted that the petitioner has already received two promotions as per the Assured Career Promotion Scheme (hereinafter “ACP Scheme”). It is further submitted that as per Clause 5 of the Memorandum of Settlement, promotion has to be through a DPC which will apply the principle of “seniority-cum-fitness” and it will consider the record of the candidates for the last three years.
15. It is submitted that the impugned award has been passed after taking into consideration the entire facts and circumstances and there is no illegality of any kind thereto.
16. Heard learned counsel for the parties as well as perused the material on record.
17. It is the case of the petitioner that he was eligible for a promotion w.e.f. 15th April, 1983 and the respondent management informed the petitioner that due to an oversight, he was not promoted alongside his juniors and was assured that he will be promoted with retrospective effect. However, the petitioner has not been promoted.
18. Furthermore, it is submitted the petitioner has suffered significant financial losses due to denial of promotion while his juniors advanced and the respondent management failed to review the petitioner’s confidential file to considered him for promotion.
19. It has also been argued that the principles of seniority-cum-fitness, as adopted by the DPC, do not necessitate the review of ACRs. Instead, as outlined in paragraph no. 6 of the Memorandum of Settlement, promotions for technical staff require a trade test to assess suitability for promotion.
20. In rival submissions, it is submitted that the petitioner was considered for the promotion in the year 1983 and his ACRs from the period 1981 to 1983 were scrutinized. These reports indicated that the petitioner received an ‘average’ rating across all evaluation criteria and was found as the most irregular worker in the respondent’s facility. Consequently, the DPC deemed him unsuitable for promotion.
21. Additionally, it is argued that the petitioner has already been granted two promotions under the ACP Scheme. Moreover, in accordance with Clause 5 of the Memorandum of Settlement, promotions are to be conducted through the DPC by applying the principle of “seniority-cum-fitness” and considering the candidates’ records from the preceding three years. Therefore, the petitioner was found to be not suitable for promotion and the same has been rightly held by the learned Tribunal.
22. The question which now falls for adjudication before this Court is whether the impugned award merits interference of this Court.
23. The learned Tribunal framed two issues i.e., whether the petitioner is competent and whether the workman is entitled to promotion or not. The relevant extracts of the impugned award are reproduced herein below:
“Both issues shall be disposed of together as they are inter-connected and evidence on record is a common one. The onus to prove these issues lies upon the workman. In support of this, Workman has examined himself as WW-1 and Shri Rajesh Kumar WW-2 who was Vice President of OTC Workers Unity Centre.

6. Shri Rajesh Kumar WW-2 who was Vice President of OTC Workers Unity Centre. He has deposed in his testimony that the dispute raised by the workman has been espoused by their union vide resolution of dated 3.7.2000, which has been got exhibited as EX.WW2/A. He has stated that the workman has been member of their union for the last ten years.

7. Workman Shri Javed Tauhidi WW-1 has deposed on his affidavit which has been got exhibited as EX. WW 1 / A alongwith documents EX.WW1 /1 to 11. He has stated that he joined the services of the management on 5.12.1978 as Assistant Body Fitter and his next promotion was due to the post of Body Fitter. However, the Management did not give a single promotion to him during the entire period of his service till 10.5.2006. He has further deposed that he made repeated representations to the Management claiming promotion when he found a number of his juniors were promoted as Body Fitter. The first batch of his juniors was promoted vide Order No.PLD-3-(56)/83/4839 dated 15.4.83, while he was also entitled to promotion as :-Body Fitter in the said order. Subsequently, vide Order No. PLD-3(56)/84/11233 dated 5.7.84, another batch of his juniors were promoted. He made various representations to the Management, but he was not promoted. He has further deposed I that vide order of dated 31.7.2003, the DTC informed him that since he has been given two upgradations on 12.8.2002 and 1.1.2003, he was not entitled for any promotion. He has stated that he suffered substantial financial loss and other losses due to non-promotion while his juniors were promoted. He has also deposed that the contention of the Management that his confidential file was adverse due to which he was not given any promotion, is an after thought as no such entries were given by the Management during the year 1981 , 1982, 1983 or any subsequent years. He has sent a registered letter of dated 19.6.2006 claiming promotion, but the Management vide its letter of dated 31.7.2003 refused to grant him promotion. He has got exhibited copies of these letters as EX.WW1 /1 & 2. He has also got exhibited his previous representation as EX. WW 1 /3. He has also deposed that he has been member of DTC Workers Unity Centre for the last ten years and the Union at its resolution dated 3.7.2003 espoused his case.

8. In defence, management has examined Shri Mohinder Kumar as MW-1, who has deposed on affidavit which has been got exhibited as EX.MW 1 / A alongwith documents from EX.MW 1 /1 to 7. He has stated in his affidavit that the workman did not work satisfactory and sincerely during his service period and as per his past service record and his annual Confidential Reports, the workman has been shown as “irregular worker” and thus was not found suitable for promotion by Departmental Promotion Committee. His service record for promotion for the year 1983 and of subsequent years shows that the annual Confidential Reports were adverse for the year 1981, 1982, 1983 and also for the subsequent years. The workman was shown in service record “the most irregular worker” and thus was not found suitable for promotion. He has further deposed that since his service record was so bad, he was not found suitable by Departmental Promotion Committee for promotion and, as such, he cannot be promoted to the next higher post. He has further deposed that the Management has given two pay promotions under ACP Scheme. Due to this ACP Scheme, the workman has been sanctioned one upgradation w.e.f. 12.8.2002 and second upgradation w.e.f. 1.1.2003 i.e. equal to two promotions of both upgradations and thus the workman was not entitled to any other benefit. He has also deposed that Departmental Promotion Committee did not find the workman fit to promotion due to adverse ACRs and as such, the workman cannot be promoted w.e.f. 15.4.1983. He has also stated that all his representations were considered and replied. He has also got exhibited the CRs for the period 1.1.1983 to 31.12.1983, 1.1.82 to 31.12.1982, 1.1.1981 to 31.12.1981, and other documents as EX.MW1 /1 to 8.

9. It has been argued on behalf of the workman that the principles of seniority-cum-fitness adopted by Departmental Promotion Committee does not postulate considerations of A.C.R.s On the other hand, Ld. AR for the Management has argued that A.C.R.s, have to be considered under the principle of seniority-cum-fitness.

On the other hand, Ld. AR for the Management has argued that A.C.R.s, have to be considered under the principle of seniority-cum-fitness.

Ld. AR for the Workman has drawn attention to the Memorandum of Settlement entered into between the Workman and the Management in respect of promotion to Class I, II and IV. Clause 1 of the said agreement says that selection of eligible candidates for promotion upto Class III posts would be made by the Departmental Promotion Committee on the principle of “seniority-cum fitness” except the technical staff for which para 6 refers. Para 6 states “As regards promotion of technical staff, trade test will be held for judging the suitability for promotion from unskilled categories, categories and for promotion from skilled highly skilled categories. After individuals in unskilled and skilled categories qualify in Trade test, promotion to semiskilled and highly skilled categories will be through DPC as applicable to general categories.

Thus, from these two clauses, it comes out that as far as technical staff is concerned, a trade test has to be conducted and thereafter, the promotion would be through DPC as applicable to general categories which has to be by DPC on the basis of “seniority-cum-fitness”. Further, here it would be relevant to take a look to Clause 5 which states that “The Selection Committee shall consider record and CRs of the candidates for the last three years. Thus from this agreement it comes out that promotion has to be through DPC which will apply the principle of “seniority-cum-fitness: and it will consider the record of CRs of the candidates for the last three years.

l0. In the present case, Shri Javed Tauhidi WW-1 has admitted in his cross examination that promotion was recommended by Departmental Promotion Committee. To quote from his testimony. “It is correct that promotion is recommended by DPC”. He has denied the suggestion that “His promotion was turned down by the DPC in 1983 as his ACR for 1981 to 1983 were bad. However, in the voluntary statement he has stated that he was irregular in duties due to his sickness for which he placed medical record. Thus, one thing which is clear from his voluntary testimony is that he was irregular in his duties.

11. Shri Mohinder Kumar MW-1 has stated in his cross examination that A.C.R.s of the workman were not good for the period 1981 to 1984 and also for the subsequent years and as such the Departmental Promotion Committee did not recommended promotion for the workman, therefore he could not be given any promotion.

He has further deposed that adverse entries in the CRs were communicated to the workman. He has admitted that the name of the workman was considered by the DPC for promotion after 1984. He has further deposed that many of his juniors were promoted as their CRs fall within the parameters to consider for promotion. If a look is made to EX.MW1 /1 which is A.C.R. for the period 1.1.1983 to 31.12.1983, it is noticed that under all the columns his assessment has been shown as “average” and under column 11 recommendation for promotion, remark “no” has been given. Under column 12 of General Remarks, it has been noted “Most Irregular Worker”. EX.MW1 /4 which is A.C.R. for the period 1 .1 .1982 to 31 .12.1982, it is noticed that under most of the columns, his assessment has been shown as “average” and under column 11 recommendation for promotion, remark “not fit” has been given. Under column 12 of General Remarks, it has been noted “An average employee, but most irregular”. Similarly, EX.MW1/6 which is A.C.R. for the period 1.1.1981 to 31.12.1981, it is noticed that under most of the columns his assessment has been shown as “average” and under column 11, recommendation for promotion, remark “not yet” has been given. Under Column 12 of General Remarks, it has been noted “Most Irregular in attendance”. EX.MW 1/2, 1/5 and 1/7 show that these entries for the year 1983, 1982 and 1981 have been, communicated to the workman. From these A.C.R.s, it is evident that workman has been assessed as an average and he has been shown to be “most irregular” in attendance. Under the terms of settlement, while promoting candidates from one Class to another, the Departmental Promotion Committee has to follow the principle of seniority-cum fitness and has also to consider record and CRs of the candidates for the last three years. The principle of seniority-cum-fitness postulates seniority as well as fitness in all respects.

12. The word “fitness” has been explained by the Hon’ble Supreme Court in Union of India and Others Vs. Lt. General Rajendra Singh Kadyan & another, MANU/SC/0462/2000 as “fitness means fitness in all respects”.

13. To ascertain the fitness of a candidate the Departmental Promotion Committee has to consider the CRs of the candidates. Class V of Memorandum of Settlement authorises the Selection Committee to consider the CRs of the candidates for the last three years.

14. In the present case the CRs of the workman has been considered by the DPC as is evident from his CR EX.MW1 /6 for the year 1.1.1981 to 31.12.1981, EX.MW1/4 for the year 1.1.1982 to 31.12.1982 and EX.MW1/1 for the year 1.1 .1983 to 31.12.1983 which are average CRs, where the workman has been assessed as an average and most irregular. DPC has not found him fit to be promoted to the next higher grade. Therefore, the consideration of ACRs for the period, 1981, 1982 and 1983 by the DPC cannot be said to be out of the purview of the principle of “seniority-cum-fitness”. Therefore, there is no force in the argument of Ld. AR for the Workman and the same stands rejected. Thus, on the face of it when the workman has been assessed an average and most irregular, the DPC cannot be expected to recommend such a candidate for promotion·. Therefore, the evidence on record goes to show that the workman was not fit to be promoted from the post of Assistant Body Fitter to Body Fitter. Since the workman was not fit to be ·promoted, he was not entitled for promotion. Therefore, both the issues go against the Workman and in favour of the Management. Workman is not entitled to any relief….”

24. Upon perusal of the above extracts of the impugned award, it is made out that the petitioner had contended that he is duly entitled to promotion to the post of ‘Body Fitter’ from his position of ’Assistant Body Fitter’, however, he was not promoted until 10th May, 2006 despite giving several representations to the respondent.
25. In rival submissions, the respondent refuted the petitioner’s case before the learned Tribunal and contended that the petitioner’s work was not satisfactory and he was irregular, therefore, he was not granted promotion by the DPC and his ACRs for the period 1981-1983 were also adverse.
26. Moreover, as per the ACP Scheme, two promotions have already been given to the petitioner. Accordingly, the petitioner workman due to his adverse ACRs and due to ACP Scheme could not be promoted w.e.f. 15th April 1983.
27. The learned Tribunal held that it is a settled principle of law that the term fitness denotes fitness in all aspects and to adjudicate upon the fitness of a candidate, DPC has to take into consideration the ACRs of the concerned candidate. Moreover, Clause V of the Memorandum of Settlement allows the Selection Committee to consider the ACRs of the candidate for the last three years.
28. It was further held that the DPC rightly considered the workman’s ACRs for the period 1981 to 1983, and the same had consistently rated him as average and highlighted irregularities in his work. Based on these assessments, the DPC deemed the workman unfit for promotion to a higher grade. Therefore, the consideration of the ACRs falls within the principle of “seniority-cum-fitness.”
29. Consequently, the argument presented by the petitioner’s legal representative was dismissed and issues were decided in favor of the Management, and the workman was not held entitled to any relief.
30. In view of the above observations, this Court is of the view that since Clause V of the Memorandum of Settlement allows the Selection Committee to consider the ACRs of the candidate for the last three years, the learned Tribunal rightly took the same into account and correctly held that the petitioner is not entitled to promotion. The said decision correctly aligns with the consistent assessment of the petitioner’s performance over the years 1981 to 1983, as also reflected in his ACRs, which consistently rated the petitioner’s work as ‘average’ and highlighted irregularities in his work conduct, thereby, supporting the DPC’s conclusion of his unsuitability for the promotion.
31. In light of the aforesaid discussions of facts as well as law, this Court is of the view that the impugned award does not suffer from any illegality and does not warrant any intervention from this Court as the petitioner has not been able to make out a case in his favour.
32. Accordingly, this Court upholds the impugned award dated 23rd March, 2010 in case bearing I.D. No. 307/2004 titled ‘Jawaid Tauhidi v. DTC’ passed by the learned Presiding Officer, Labour Court, Karkardooma.
33. In view of the above, the instant petition stands dismissed along with pending applications, if any.
34. The order to be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
APRIL 16, 2024
dy/db/ryp

W.P. (C) 1282/2011 Page 1 of 14