Full Text
JUDGMENT
NEW DELHI MUNICIPAL COUNCIL ..... Petitioner Represented by: Ms. Manpreet Kaur, Advocate with Mr. Arun Bhardwaj, Advocate
1. The challenge in this writ petition is to the award dated December 13, 2001 passed by the Labour Court in I.D No.203/1994, whereby the Labour Court has directed the reinstatement of the respondent No.1 with full back wages and continuity in service.
2. The reference to the Labour Court by the appropriate government vide order dated July 08, 1994 was on the following terms: “Whether the services of Sh.Nanank Chand have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect.”
3. The case of the respondent No.1 before the Labour Court was that he joined the services of the petitioner in the Horticulture Department as Mali with effect from February 13, 1987. He was treated as daily rated casual/muster roll worker and was paid Rs.450/- p.m as consolidated 2014:DHC:2848 pay. It was the case of the respondent No.1 that he was terminated illegally on April 16, 1988 without assigning any reasons. It was his case that the job against which he was working was regular in nature. He had also alleged that juniors to him are still in the service which is in violation of Section 25G, 25H of the Industrial Disputes Act, 1947 (Act in short) and Rule 76, 77 & 78 of the Industrial Disputes (Central) Rules,
1957. It was his case that he had completed 248 days of continuous service and no notice was given before terminating his service and had prayed for reinstatement with back wages.
4. On the other hand, it was the case of the petitioner herein before the Labour Court that the respondent No.1 was engaged as Mazdoor on muster roll on temporary basis only and after the work was over, he left on his own and had not come forward or inquired about the work after April 15, 1988. In other words, it was their case that his services were never terminated. The petitioner had denied that any person junior to him was working with it. The petitioner had also taken a stand that the respondent No.1 was gainfully employed after his alleged termination. Therefore, he was not entitled to any relief as prayed for. It was also their case that the respondent No.1 had worked between the period November 07, 1987 to April 15, 1988 with usual breaks in service.
5. The petitioner had also stated that after 1988 the respondent No.1 alleged to have sent the demand notice only on July 11, 1992 which itself prove that he was not interested in serving on daily wages. Therefore, he had not come forward after April 15, 1988.
6. The Labour Court framed the following three issues: (1) Whether the workman was in the employment of the management as Mali or Mazdoor. (2) Whether the workman left his job after 15.4.88. (3) As per terms of reference.
7. Insofar as issue No.1 is concerned, the same was decided in favour of the workman, by holding that when workman is not regular he is called Mazdoor and when regular he is called as a Mali. The Labour Court of the view that the services of the respondent No.1 were terminated illegally without complying with due process of law. Therefore, he was entitled to reinstatement and full back wages as there is nothing on record that he was gainfully employed.
8. It is the contention of Ms.Manpreet Kaur, learned counsel for the petitioner that the respondent No.1 was engaged as a daily wager mazdoor and the engagement came to an end when the work was over. The respondent No.1 did not come for fresh engagement after April 15,
1988. She would also state that the respondent No.1 has not completed 240 days. She had drawn my attention to the affidavit filed by Mr.B.S.Sharma (MW[1]), wherein he has stated that the respondent No.1 had worked for 82 days. Alternatively she had pleaded that even if the provisions of Section 25F of the Act have not been followed, then also it is compensation which need to have been granted.
9. On the other hand, Mr.Rajiv Aggarwal, learned counsel for the respondent No.1 would submit that the petition has been filed after 2 years from the date of the impugned award. He would state that the respondent No.1 had completed 240 days. No notice nor notice pay in lieu thereof was given to the respondent No[1] while terminating the services. He would also submit that persons junior to him had been retained in service, whereas the petitioner has been singled out for termination. Further he states that there was nothing adverse against the respondent No.1. Insofar as compensation is concerned, he submits that no such plea was taken by the petitioner before the Labour Court. He would rely upon the following judgments in support of his contentions: (a) Shri Sukhbir Singh & Anr. vs. Union of India & Anr., W.P.(C) 7347/2009, decided on April 15, 2009. (b) 2007 (8) SCC 449 Prestige Lights Ltd. vs. State Bank of India (c) 2008 (4) SCC 127 G.M, Haryana Roadways. Vs. Jai Bhagwan & Anr. (d) 2010 (3) SCC 192 Harjinder Singh vs. Punjab State Warehousing Corporation (e) 117 (2005) DLT 63 MCD vs. Asha Ram (f) 2010 (5) SCC 497 Anoop Sharma vs. Executive Engineer, Public Health Division No.1, Panipat Haryana (g) MCD vs. Presiding Officer, Industrial Tribunal & Anr., W.P.(C) 6024/1999 decided on August 25, 2011. (h) 2010 (3) SCC 637 Krishan Singh vs. Executive Engineer, Haryana State Agriculture Marketing Board, Rohtak (Haryana)
(i) MCD vs. Laxmi Devi W.P.(C) No.8144/2007 decided on
January 20, 2014 (j) 1999 (6) SCC 82 Ajaib Singh vs. The Sirhind Cooperative Marketing cum Processing Service Society Ltd. & Anr.
10. Having heard the learned counsel for the parties, the first issue need to be decided is whether the workman had put in 240 days continuous service in the relevant year. I note that the Labour Court relied upon Ex.MW1/W-1 which is a document, depicting the respondent No.1 having worked for 240 days. That apart the document was certified by the petitioner’s own officer namely Mr.B.S.Sharma (MW[1]) to the effect that respondent No.1 had rendered 240 days. That apart, MW[1] (B.S.Sharma) has also admitted the contents of Ex.MW1/W[1] by stating that the name of the respondent No.1 appears at serial No.36 and respondent No.1 worked for 248 days. I also note that MW[2] namely J.P.Sharma had also testified that the respondent No.1 had worked in NDMC for more than 240 days in 12 calendar months. In view of the aforesaid deposition of the officers of the petitioner, there is no dispute about the respondent No.1 having worked for 240 days. Since there is no dispute on the aspect of the respondent No.1 having worked for 240 days, the Labour Court held that the respondent No.1’s retrenchment could not have been without following the mandate of 25F of the Act. Primarily for the said reason, the Labour Court had granted the relief. To that extent the conclusion of the Labour Court cannot be interfered with.
11. Now the question which would arise is whether the Labour Court was justified in giving the relief of reinstatement with full back wages. Before I deal with this question I deal with the judgments relied upon by the learned counsel for the respondent No.1.
12. Insofar as the judgment of this Court in Sukhbir Singh’s case (supra) is concerned, the learned Single Judge of this Court has held that a petition filed after a gap of 8 years is not maintainable and the petitioner cannot claim a reference to the industrial adjudicator at such a belated stage. It appears that this judgment is being relied upon by the respondent No.1 to seek the dismissal of the writ petition as the same has been filed after about 2 years from the date of the impugned award. As I note that the writ petition has been filed in the year 2003 and has been pending for more than 11 years, it would be too late in the day to nonsuit the petitioner only on the ground of delay and laches. That apart I note that the petitioner in para No.8 had justified the delay in filing the writ petition on account of the fact that the petitioners were keen to settle the matter amicably with the respondent No.1 but the efforts went in vain.
13 Insofar the judgments of the Supreme Court in Prestige Lights Ltd. case (supra) and G.M, Haryana Roadways case (supra) are concerned, the same primarily decides, that concealment of facts would disentitle a party the relief. It was the case of the respondent No.1 that the petitioner has concealed the material facts inasmuch as after the impugned order was passed in the year 2001 on an application filed by the respondent No.1 seeking implementation of the impugned award the respondent No.1 recovered back wages amounting to Rs.2,73,824/- on August 04, 2003 for the period between April 16, 1988 to August 31, 2002. This concealment being material would dis-entitle the petitioner any relief. I note from the writ petition that the petitioner has not averred about the execution proceedings initiated by the respondent No.1 and also the fact that the petitioner had paid an amount of Rs.2,73,824/- on August 04,
2003. It is a material fact, which should have been disclosed. This aspect should surely be considered by this Court while concluding this judgment.
14. Insofar as the judgments of the Supreme Court in Harjinder Singh’s case (supra), Asha Ram & Anr. case (supra) and Anoop Sharma’s case (supra) are concerned, the Supreme Court in a case reported as 2013(5) SCC 136, Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub Division, Kota vs. Mohan Lal wherein Harjinder Singh’s case (supra) was referred to and distinguished, had granted compensation in lieu of reinstatement and back wages. This Court relying on Assistant Engineer, Rajasthan State Agriculture Marketing Board Sub Division, Kota (supra) had decided W.P.(C) 2354/2012 on February 11, 2014 whereby modified the order of the Labour Court from that of reinstatement with back wages to that of compensation. The same shall be dealt with in the later part of this judgment.
15. Insofar as the judgment of this Court in MCD vs. Presiding Officer, Industrial Tribunal & Anr. is concerned, this Court had held that if there is violation of Section 25G of the Act, it is not obligatory to prove the completion of 240 days in the year preceding the date of termination of service. Since the Labour Court has not given any finding on this aspect and had granted relief to the respondent No.1 and also the fact that the respondent No.1 has not challenged the award on that ground the judgment would not be applicable while considering the legality of the award of the Labour Court.
16. Insofar as the judgment of the Supreme Court in Krishan Singh’s case (supra) is concerned, suffice to state that the Supreme Court was concerned with an award of the Labour Court which set aside the termination of the worker on the ground that the same was in violation of Section 25F of the Act. The award was set aside by the High Court. The Supreme Court held that the Labour Court has exercised its jurisdiction taking into consideration the pleadings of the parties and evidence on record. As to be noted in the subsequent paras the Supreme Court has held that reinstatement with full back wages is not automatic. The Supreme Court has also upheld the grant of compensation in lieu of reinstatement with back wages and I shall be referring to the said judgment hereinafter.
17. Insofar as the judgment of this Court in MCD vs. Laxmi Devi case (supra) is concerned, this Court has concluded that Section 25G has been violated, whereas in the case in hand, no such conclusion has been arrived at. Rather the Labour Court finding was only with regard to Section 25F of the Act. As stated above, the respondent No.1 has not challenged the award.
18. Insofar as the judgment in Ajaib Singh’s case (supra) is concerned, the same would have no bearing in the facts of this case as I note that the Labour Court had entertained the industrial dispute and granted relief to the respondent No.1.
19. One fact which I would like to highlight is that in this writ petition and connected writ petitions this Court had directed the petitioner either to take the workers back on duty or to pay them the minimum wages. The said order was challenged by the petitioner before the Supreme Court and the Supreme Court was pleased to say the order and granted leave to appeal. While disposing of the appeals the Supreme Court did not alter the stay order already granted by it and directed this Court to dispose of the writ petition within 3 months from the date of order i.e. April 03, 2013. In the eventuality the petitions are not disposed of within 3 months, it would be open to the respondent No.1 to file an application under Section 17-B of the Act. It appears, no such application was filed.
20. Now coming to the relief I have concluded that the order of the Labour Court holding the termination to be bad. As referred above, recently this Court had decided writ petition No.2354/2012 on February 11, 2014, wherein the issue which fell for consideration was that whether if the termination is held to be bad for non-compliance of Section 25F of the Act, the reinstatement with full back wages shall necessarily follow. This Court while deciding the said issue has held as under:
19. The question which now falls for consideration is whether in the given facts the Labour Court was justified in giving reinstatement to the respondent with full back wages and continuity of service. The normal rule being reinstatement with back wages, there can be a departure from the said rule for certain good reasons. The Supreme Court in the case of Senior Superintendent Traffic, Bhopal vs. Santosh Kumar Seal & Ors. inter-alia held that the relief by way of reinstatement with full back wages is not automatic even if termination of an employee is found to be illegal or any contravention of the prescribed procedure and with monetary compensation in lieu of reinstatement and back wages in cases of such nature may be proper. The Court in the said case had granted compensation of `40,000/- to each of the workman.
20. In its latest opinion reported as (2013) 5 SCC 136 Assistant Engineer, Rajasthan State Agriculture Marketing Board Sub Division Kota vs. Mohan Lal, the Supreme Court after considering its earlier judgment had granted compensation of `1,00,000/- to the workman where the workman had worked for a period between November 01, 1984 and February 17, 1986 and who had raised industrial dispute after 6 years. The relevant portion of the judgment is reproduced hereunder:
9. In L. Robert D'Souza [L. Robert D'Souza v. Southern Railway, (1982) 1 SCC 645: 1982 SCC (L&S) 124] this Court in para 27 held as under: (SCC p. 664)
10. In RBI v. S. Mani [(2005) 5 SCC 100: 2005 SCC (L&S) 609], this Court in para 54 of the Report held as under: (SCC p. 120)
11. In Nagar Mahapalika v. State of U.P. [(2006) 5 SCC 127: 2006 SCC (L&S) 934], this Court, while dealing with the non-compliance with the provisions of Section 6-N (which is in pari materia with Section 25-F) of the U.P. Industrial Disputes Act held that the grant of relief of reinstatement with full back wages and continuity of service in favour of retrenched workmen would not automatically follow or as a matter of course. Instead, this Court modified the award of reinstatement with compensation of Rs 30,000 per workman. In Municipal Council, Sujanpur v. Surinder Kumar [(2006) 5 SCC 173: 2006 SCC (L&S) 967] this Court after having accepted the finding that there was violation of Section 25-F of the ID Act, set aside the award of reinstatement with back wages and directed the workman to be paid monetary compensation in the sum of Rs 50,000. In Mamni [Haryana State Electronics Development Corpn. Ltd. v. Mamni, (2006) 9 SCC 434: 2006 SCC (L&S) 1830] this Court modified the award of reinstatement passed by the Labour Court, though the termination of the workman was in violation of Section 25-F of the ID Act, by directing that the workman should be compensated by payment of a sum of Rs 25,000.
12. In SBI v. Mahatma Mishra [(2006) 13 SCC 727: (2008) 1 SCC (L&S) 988] this Court observed that: (SCC p. 734, para 12)
13. In HUDA v. Om Pal [(2007) 5 SCC 742: (2007) 2 SCC (L&S) 255] this Court in paras 7 and 8 of the Report held as under: (SCC p. 745)
14. In Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353: (2007) 2 SCC (L&S) 813], this Court was concerned with a daily wager who had worked with Uttaranchal Forest Development Corpn. from 1-8- 1989 to 24-11-1991 and whose services were held to be terminated in violation of Section 6-N of the U.P. Industrial Disputes Act. The Labour Court had directed the reinstatement of the workman with 50% back wages from the date the industrial dispute was raised. Setting aside the order of reinstatement and back wages, this Court awarded compensation in a sum of Rs 75,000 in favour of the workman keeping in view the nature and period of service rendered by the workman and the fact that industrial dispute was raised after six years.
15. In M.P. Admn. v. Tribhuban [(2007) 9 SCC 748: (2008) 1 SCC (L&S) 264] this Court upheld the order of the Industrial Court passed in its jurisdiction under Section 11-A of the ID Act awarding compensation and set aside the judgment of the Single Judge and the Division Bench that ordered the reinstatement of the workman with full back wages. This Court in para 12 of the Report held as under: (SCC p. 755)
16. In Mahboob Deepak [Mahboob Deepak v. Nagar Panchayat, Gajraula, (2008) 1 SCC 575: (2008) 1 SCC (L&S) 239] this Court stated that an order of retrenchment passed in violation of Section 6-N of the U.P. Industrial Disputes Act may be set aside but an order of reinstatement should not however be automatically passed. This Court observed in paras 11 and 12 of the Report as follows: (SCC p. 578)