Rahul Sharma v. South Delhi Municipal Corporation

7. The aforesaid office orders reveal that the Appellants were appointed for a period of 180 days. Moreover, the facts of the case reveal that, the Appellant‟s services were extended for a period of 89 days from time to Digitaaly time. The last extension was given on 09.05.2011 and their services continued till 31.05.2011. No extension was granted to the Appellants thereafter.

8. The Appellants before this Court raised an industrial dispute under Section 2(a) of the Industrial Disputes Act, 1947 (the “ID Act”) claiming that they have been appointed in the year 2007 for a period of 180 days; they were granted extensions from time to time for a period of 89 days; and they have continued with intermittent breaks with the IT Department up to 31.05.2011. The Appellants claimed before the Tribunal that they were entitled to reinstatement in service with back wages as they had put in 240 days service in a calendar year. Further, the Appellants claimed before the Tribunal that the termination was in violation of Section 25F of the ID Act.

9. It was also contended before the Tribunal that several employees junior to the Appellants had been retained in service at the time of illegal termination, and therefore, the termination was in violation of Section 25G of the ID Act. Moreover, it was contended that the termination was in violation of Sections 25H & 25N of the ID Act and a prayer for reinstatement of the Appellants with back wages on the post of LDC was made before the Tribunal.

10. The MCD filed a written-statement in all the three cases and submitted that the Appellants were appointed at the time when digitization of records was being undertaken in a mission mode and the IT Department engaged some Assistants on a temporary basis to inter alia populate relevant data into the MCD‟s computers. It has been stated that their services were continued till regular appointments were made. It was also stated that they Digitaaly were temporary contractual employees and keeping in view Section 2(oo)(bb) of the ID Act, non-renewal of a contract cannot be termed as „retrenchment‟ or „termination‟.

11. It was also brought to the notice of the Tribunal that for the purposes of recruitment to the post of LDC, competitive examination is conducted by the Delhi Subordinate Services Selection Board (DSSSB), and as the contractual employees have not at all participated in the process of selection, the question of reinstating them with back wages does not arise.

12. The Tribunal has passed an Award dated 10.09.2014 and arrived at a conclusion that the Appellants had certainly completed more than 240 days in the preceding year of termination of their service and, therefore, the termination is in violation of Section 25F of the ID Act. However, the Industrial Adjudicator held that there was no violation of Section 25G and 25H of the ID Act. The Tribunal – while passing the Awards, instead of directing reinstatement with back wages has granted compensation to the tune of Indian Rupees One Lakh to each of the Appellant(s) along with interest @ 9% per annum. Further, costs had also been imposed upon the MCD to the tune of Indian Rupees Fifty Thousand in each case.

13. The Awards were subjected to judicial scrutiny by way of the Writ Petitions filed before this Court. The learned Single Judge vide the Impugned Order dismissed the Writ Petitions. The operative portion of the Impugned Order – as contained in paragraphs 33 to 36, reads as under: “33. Admittedly, the appointments of the petitioners were made to meet out the exigency by the respondent/management Digitaaly on contractual basis on daily wage rate due to induction of computerization. In view of urgency of the issue of making the entries in the computers, the appointments were made without following the requisite recruitment procedure. The petitioners were designated as Assistants for which there were no sanctioned posts. Thus the appointment of the petitioners was not as per the recruitment rules. Since the petitioners had worked for more than 240 days in the year preceding to their termination by not giving them further extension beyond 31.05.2011, the Industrial Adjudicator found it to be illegal termination in violation of Section 25-F of the ID Act. The Industrial Adjudicator did not grant the relief of reinstatement in service for the reasons mentioned herein before but awarded a lump sum compensation of Rs.1,00,000/- along with exemplary cost of Rs.50,000/- to each of the petitioners. Admittedly, the respondent/management has not impugned the award and rather preferred to make the payment of the awarded amount to the petitioners. The particular issue involved in the case has been answered by the Hon‟ble Supreme Court in Bhurumal‟s case (supra) to the effect that when the workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization and when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the court itself. Para 21 and 24 of the judgment reads as under: -

34. In the light of these judgments of Hon‟ble Supreme Court in Umadevi‟s case (supra) and Bhurumal‟s case (supra), when the petitioners were appointed on daily wage basis without following the requisite recruitment process and their services have come to an end after expiry of the contractual period, the petitioners have no vested right to seek their reinstatement or reinstatement with a different designation as LDC or on the similar post of Assistant which does not exist. In such a Digitaaly situation, they could only be considered for granting of lump sum compensation, which has been adequately granted to them by the Industrial Adjudicator by the impugned award.

35. The judgment of Krishan Singh‟s case (supra) relied upon by the learned counsel for the petitioners is not applicable as in that case the management had not taken the plea in its written statement that the post on which the workman was working was not a sanctioned post or that appointment was contrary to the statutory rules; whereas in the present case specific defence has been taken by way of preliminary objection no.3 in the written statement by the respondent/management, which has not been controverted by the petitioners in the corresponding paras of the rejoinder. This factual position was not disputed by the learned counsel for the petitioners even at the time of arguments. The Judgment of Single Bench of this Court in Vimal Kumar‟s case (supra) the workman Vimal Kumar was admittedly appointed by following the due procedure of recruitment and is distinguishable. The judgment of Division Bench of this court in Delhi Cantonment Board‟s case (supra) is also distinguishable in view of the later development in law particularly in view of the judgments of Hon‟ble Supreme Court in Umadevi‟s (supra) and Bhurumal‟s (supra). The judgment of Deepali Gundu Surwase‟s case (supra) also does not apply as the workman involved was not appointed on contractual or daily wages basis but was a regular teacher working in a private school in which aid-in-grant was being given by the State Government. The judgment of Jasmer Singh‟s case (supra) does not come to the rescue of the petitioners since the State had taken the only plea of abandonment of service by the workman and no plea was taken about his appointment in violation of recruitment rules.

36. In view of these discussions, I do not find any merit in the writ petitions. The writ petitions are accordingly dismissed.”

14. This court has heard learned counsel for the parties and perused the record. The undisputed facts of the case reveal that the MCD started a Digitaaly initiative to digitize its record, and in order to meet exigency to feed the data in the computers, pending recruitment through DSSSB. The Appellants were appointed by the MCD for a period of 180 days as daily wagers at the rate of Rs. 152.45/- per day vide office orders dated 29.11.2007 and 20.11.2007 respectively. They continued in service up to 31.05.2011.

15. Learned Counsel for the appellant has vehemently argued before this Court that once the Industrial Adjudicator has arrived at a conclusion that the termination of services of the workmen was in violation of Section 25F of the I.D. Act, the workmen were entitled for reinstatement, continuity in service with full backwages.

16. Heavy reliance has been placed upon judgments delivered by the Hon‟ble Supreme Court Anoop Sharma v. Public Health Division, Haryana, (2010) 5 SCC 497 and Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) and Others, (2013) 10 SCC

324.

17. Learned Counsel for the appellant has vehemently argued before this Court that the I. D. Act does not distinguish between a daily wager and a regular employee. Therefore, in light of the judgment delivered by Division Bench of this Court in the case of Delhi Cantonment Board v. Central Govt. Industrial Tribunal, 2006 SCC OnLine Del 97, the Appellants are entitled for reinstatement and backwages.

18. Learned Counsel for the Appellants has vehemently argued before this Court that once the Appellants services was illegally terminated, there should have been reinstatement instead of granting compensation. Digitaaly

19. This Court has carefully gone through the entire record. It is certainly true that that the Appellants were appointed as Assistants (i.e. daily wagers) for a period of 180 days and thereafter, continued with intermittent breaks till 31.05.2011. It is also an undisputed fact that the Appellants were inducted to meet out an exigency vis-à-vis population of data under the digitization drive in the MCD. Subsequently, the MCD granted approval for creation of 13 Group „C‟ post in I. T. Department and undisputedly the posts are to be filed through DSSSB.

20. The Appellants worked only as daily wagers, pending recruitment. Pertinently, vide a notification dated 09.05.2011 the MCD sanction inter alia 3 (three) LDC posts i.e., posts wherein the work was similar to that undertaken by the Appellants, however the said posts/vacancies have been filled up by way of direct recruitment.

21. The undisputed facts makes it very clear that the Appellants were appointed as daily wagers till regular recruitment took place. Thus, in absence of sanctioned posts, the question of directing reinstatement of the Appellants does not arise. The Tribunal as well as the learned Single Judge were justified in granting lump-sum compensation keeping in view the judgments delivered by the Hon‟ble Supreme Court on the subject.

22. The law relating to grant of compensation in lieu of reinstatement has been crystallized by the Hon‟ble Supreme Court and the Hon‟ble Supreme Court in the case of Senior Superintendent Telegraph Deptt. Vs. Santosh Kumar Seal, (2010) 6 SCC 773 in Paragraph 9 has held as under: Digitaaly “9. In the last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479: 2006 SCC (L&S) 250], Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353: (2007) 2 SCC (L&S) 813], State of M.P. v. Lalit Kumar Verma [(2007) 1 SCC 575: (2007) 1 SCC (L&S) 405], M.P. Admn. v. Tribhuban [(2007) 9 SCC 748: (2008) 1 SCC (L&S) 264], Sita Ram v. Moti Lal Nehru Farmers Training Institute [(2008) 5 SCC 75: (2008) 2 SCC (L&S) 71], Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684: (2007) 1 SCC (L&S) 518], GDA v. Ashok Kumar [(2008) 4 SCC 261: (2008) 1 SCC (L&S) 1016] and Mahboob Deepak v. Nagar Panchayat, Gajraula [(2008) 1 SCC 575:

23. In light of the aforesaid judgment, it can be safely gathered that even if the termination of an employee is found to be illegal, the relief of reinstatement with full backwages is not automatic and compensation instead of reinstatement can be awarded to meet the ends of justice. Therefore, keeping in view the aforesaid judgment of the Hon‟ble Supreme Court, this Court is of the opinion that the Tribunal as well as the learned Single Judge were justified in granting lump-sum compensation to the workmen instead of reinstatement.

24. The Hon‟ble Supreme Court in the case of Bhavnagar Municipal Corpn. Vs. Jadeja Govubha Chhanubha, (2014) 16 SCC 130 has again dealt with the issue of grant of compensation. Paragraph Nos. 9, 12, 13 & 14 of the aforesaid judgment reads as under: Digitaaly “9. The only question that remains to be examined in the above backdrop is whether reinstatement of the respondent as a Conductor is imperative at this late stage. We say so because the appellant claims to have worked for a period of just about 18 months that too nearly three decades ago. The respondent today may be past fifty if not more. The Transport Department where he was working appears to have been wound up and transport work outsourced. That apart, this Court has in a series of decisions held that the illegality in an order of termination on account of non-payment of retrenchment compensation does not necessarily result in the reinstatement of the workman in service. This Court has, in cases where such termination is found to be illegal, directed compensation in lieu of reinstatement. We may at this stage refer to some of those decisions. xxxxxx

12. To the same effect is the decision of this Court in Jagbir Singh v. Haryana State Agriculture Mktg. Board[Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327: (2010) 1 SCC (L&S) 545] wherein this Court held that while awarding compensation in lieu of reinstatement a host of factors should be kept in mind. The Court said: (SCC p. 335, paras 17-18) “17. While awarding compensation, the host of factors, inter alia, manner and method of appointment, nature of employment and length of service are relevant. Of course, each case will depend upon its own facts and circumstances.

18. In a case such as this where the total length of service rendered by the appellant was short and intermittent from 1-9- 1995 to 18-7-1996 and that he was engaged as a daily wager, in our considered view, a compensation of Rs 50,000 to the appellant by Respondent 1 shall meet the ends of justice.” (emphasis supplied)

13. Reference may also be made to the decision of this Court in Telegraph Deptt. v. Santosh Kumar Seal[Telegraph Deptt. v. Santosh Kumar Seal, (2010) 6 SCC 773: (2010) 2 SCC (L&S) 309], wherein this Court referred to the previous decisions on the subject to declare that even when a Digitaaly retrenchment order passed in violation of Section 25-F may be set aside, reinstatement need not necessarily follow as a matter of course. The following passage from the decision is apposite: (SCC p. 777, para 10)

Digitaaly

25. In light of the aforesaid judgment, keeping in view the fact that the workmen were appointed on (i) 20.11.2007; and (ii) 29.11.2007 by the MCD in its I. T. Department for a period of 180 days, and thereafter the Appellants have continued with intermittent breaks up to 31.05.2011, the Tribunal was justified in awarding compensation to the workmen in question.

26. It is an undisputed fact that the MCD in order to digitize its records appointed the Appellants as daily wagers pending recruitment, and later on the sanctioned inter alia 13 Group „C‟ posts in its I.T. Department which came to be filled up through DSSSB. Hence, the Tribunal has taken a correct view in the matter by granting compensation in lieu of reinstatement. This Court keeping in view the totality of the circumstances of the case is of the opinion, that the compensation granted to the Appellants in question, is just and equitable that meets the ends of justice.

27. The Hon‟ble Supreme Court in the case of State of Uttarakhand Vs. Raj Kumar, (2019) 14 SCC 353, in Paragraph Nos. 13 and 14 has held has under:

28. The Hon‟ble Supreme Court in the aforesaid case has again granted compensation to the workmen in lieu of reinstatement.

29. In the case of Sita Ram Vs. Moti Lal Nehru Farmers Training Institute, (2008) 5 SCC 75, in Paragraph Nos. 24 & 25, the Hon‟ble Supreme Court has held has under:

30. The Hon‟ble Supreme Court in the aforesaid case has also granted compensation to the tune of Rs. 1,00,000/- to each of the workmen in the interest of justice instead of reinstatement. Therefore, in present case the Tribunal and learned Single Judge were justified in the granting compensation keeping in view the peculiar facts and circumstances of the case. Digitaaly

31. In the case of M. P. Admn. Vs. Tribhuban, (2007) 9 SCC 748, in Paragraph Nos. 6 and 11, the Hon‟ble Supreme Court has held as under:

32. In the aforesaid case, keeping in view the delay involved in the matter instead of directing reinstatement with backwages, the Hon‟ble Supreme Court has granted Rs. 15,000/- compensation to the workmen.

33. In the case of Allahabad Jal Sansthan vs. Daya Shankar Rai, (2005) 5 SCC 124, the Hon‟ble Supreme Court in Paragraph 16 has held as under:

34. The Hon‟ble Supreme Court in the aforesaid case also granted lumpsum compensation keeping in view the peculiar facts and circumstances of the case. In the present case, as the Appellants were appointed as daily wagers, purely on a temporary basis without following the due process of recruitment, their services came to end after expiry of the contractual period. The sanctioned posts have been filed up by direct recruitment through DSSSB and there are no relevant posts and / or vacancies available in the IT Department. Therefore, keeping the totality and circumstances of the case, the Tribunal and the learned Single Judge were justified in directing the department to pay compensation to the workmen. Resultantly this Court does not find any reason to interfere with the award passed by the Tribunal, nor with the judgment passed by the Learned Single Judge.

35. Dismissed. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE (SANJEEV NARULA)