MCD v. Prakash Chand

1. Vide the present petition, petitioner/MCD has assailed the award dated 27.01.2010, whereby Ld. Industrial Tribunal qua issue no. 3 has held that the payment of first ACP to workman / respondent, fitter in the pay scale of Rs.4,000 to Rs.6,000/- w.e.f 09.08.1999 with all consequential benefits is justified. Accordingly, respondent / workman is entitled to this scale with all consequential benefits w.e.f 09.08.1999.

2. The grounds urged in the present petition are that post of fitter does not have any promotional hierarchy in the Horticulture Department, in which the respondent / workman was working. Therefore, in accordance with the first schedule of Gazette Notification dated 31.09.1997 of Ministry of Finance (Department of Expenditure) the respondent was granted ACP Scheme and his pay scale and was revised time to time as per his entitlement. 2014:DHC:4478

3. It is further averred that there is no post of head fitter in the Corporation. One post of fitter was created on ad hoc basis for a period of six months only in the year 1983 in the pay scale of Rs.380 – Rs.500, on which one Sh. Sultan Singh was appointed. Thereafter, this post was automatically abolished as no fitter has been appointed after the implementation of the ACP Scheme.

4. Further averred, presently the post of fitter in the pay scale of Rs.3,050 – 4,590/- is an isolated post in the Horticulture Department of the Corporation and no post of mechanic exists in the said Department. However, the Ld. Tribunal has wrongly placed reliance upon the Rules and Regulations of the Fire Department (Engineering) Ex.MW1/W[1] and granted the award in favour of the respondent / workman, who was working as a fitter in the Horticulture Department.

5. Ms. Mansi Gupta, Ld. Counsel appearing on behalf of the petitioner submits that the Fire Department was separated from the petitioner in the year 1994 and therefore, the Rules and Regulations of the said Department are not applicable in the present case.

6. On perusal of the impugned Award, it is revealed that the AR of the Management argued before the Ld. Tribunal that the initial post was post of fitter, from which an employee was promoted as mechanic. There exists no post of head fitter in the establishment and Sh. Sultan Singh was promoted as head fitter only on ad hoc basis, which came to be abolished after completion of ad hoc period. Since no post of head fitter exists, therefore, post of fitter is an isolated post for which scale S-6 has been prescribed under Rules and workman has been rightly placed in the pay scale of Rs.3,200 – 4,900/- as benefit of first ACP Scheme.

7. However, in cross-examination, MW[1] Sh. P.K. Banerjee admitted that for creation of initial post rules were made. It is further admitted that Sultan Singh was granted promotion on the post of head fitter on ad hoc basis vide Office Order Ex.WW1/1. It has been mentioned that the post of head fitter was created in the pay scale of Rs.380 – 500/- plus usual allowances for the period of six months and Sultan Singh was promoted as per the said Rules. Further admitted that post can be created only after amendment of Rules.

8. The issue before the Tribunal was that whether post of mechanic or head officer or post of fitter is an isolated post?

9. The Management admitted that it had created post of head fitter vide Office Order Ex.WW1/1 on which Sh. Sultan Singh was promoted as head fitter, though on ad hoc basis. It is further admitted that pay scale of head fitter was Rs.4,000 – 6,000/- and post of mechanic also carries the same pay scale as established from Ex.MW1/W[1], which shows that fitter with 10 years regular service is eligible to be promoted to the post of mechanic. In other words, on the basis of the aforesaid Rule, it is clear that post of fitter carries pay scale of Rs.260 – 350/- (revised to Rs.3,050 – 4,590), whereas post of mechanic and head fitter carries pay scale of Rs.380 – 500/- (Rs.4,000 – 6,000).

10. As per Rule, Ex.MW1/1, the post of fitter, which is an initial post, carries pay scale of Rs.3,050 – Rs.4,590/-, and the same is to be filled by direct recruitment. The next promotional post from the post of fitter is mechanic, which carries pay scale of Rs.4,000 – Rs.6,000/-.

11. Ex.WW1/1 established that post of head fitter was created, though on ad hoc basis, and pay scale of the same was equivalent to the pay scale of mechanic, i.e., Rs.4,000 – Rs.6,000/-. Both these posts, i.e., post of mechanic and of fitter are of same status and carry the same pay scale of Rs.4,000 – Rs.6,000/-. As per Ex.WW1/1, senior fitter had been promoted on the basis of scale of head fitter and according to Rules, a fitter with 10 years regular service can be promoted as mechanic.

12. Thus, the post of mechanic and head fitter is a promotional post from the post of fitter and therefore, fall in the hierarchy of the post. Moreover, the petitioner failed to produce any documentary proof or witness to the effect that the post of head fitter was abolished. Therefore, there was no occasion before the Ld. Tribunal to believe that the respondent / workman was not entitled to the pay scale of Rs.4,000 – Rs.6,000/- w.e.f 09.08.1999.

13. In view of above, I find no discrepancy in the order passed by the Ld. Tribunal.

14. Accordingly, instant petition is dismissed with no order as to costs.

SURESH KAIT, J SEPTEMBER 08, 2014 jg