Full Text
HIGH COURT OF DELHI
AIRPORT AUTHORITY OF INDIA ..... Petitioner
Through: Mr. Vaibhav Kalra, Ms. Neha Bhatnagar, Mr. Varun Kalra and Mr.AshleenKalra, Advs. along with Mr. Ravi, Manager.
Through: Mr. Pradeep Kumar Arya, Ms. Sanya Arora, Mr. Raj Karan Sharma, Mr. Aditya Yadav, Mr. RateekChikkara, Mr. Anshul Malik, Mr.Priyanshu Malik and Mr. Gaurav Chaudhry, Advs.
JUDGMENT
1. The present writ petition filed by the management/Airport Authority of India assails the Award dated 03.02.2003 passed by the Central Government Industrial Tribunal-cum Labour Court Lucknow (hereinafter ‘the Tribunal’) in ID No.57/2002. Under the impugned Award the Labour Court has, after holding that the respondent/workmen were illegally terminated from service, directed the petitioner to reinstate them with 50% back wages. 2019:DHC:7111
2. In 1985, the respondent/workmen were appointed to the posts of Operator, Wireman, Non-technical Supervisor, Beldar etc., on a daily wage basis for rendering services in the petitioner’s project for constructing the New International Terminal Complex (NITC) of Indira Gandhi International Airport, New Delhi. In early 1986 when a major portion of the construction work stood completed, the services of the respondents and other daily wage workers were not extended any further. However, in view of available regular vacancies for regular positions arising against Class III and Class IV posts at the NITC, the petitioner invited applications from those daily wage workers who had rendered more than 240 days of continuous service and desired to be considered for regular employment, resulting in the regularisation of 132 and 6 daily wage workers against Class-IV and Class- III posts respectively. Subsequent thereto the service of the surplus daily wage workers, including the respondents, was discontinued.
3. The 114 workmen affected by the aforesaid termination, including the 26 respondents in the present petition, raised an industrial dispute claiming that the termination of their services by the petitioner being in violation of Section 25F of the Industrial Disputes Act, 1947 (‘ID Act’ for short) and of Rules 76,77 and 78 of the Industrial Disputes Central Rules, 1957 (‘ID Rules’ for short) was illegal. Upon the conciliation proceedings having failed, the Central Government made a reference to the Tribunal in the following terms- “Whether the action of the International Airport Authority of India in terminating the services of 114 employees NITC project (as detailed in annexure) w.e.f. 1.06.1986/ 01.07.1986 is legal and justified. If not, to what relief these workmen are entitled.”
4. In its written statement, the petitioner/management opposed the respondents’ claim by contending that its requirement of the daily wage workmen was purely temporary, for the purpose of constructing the new airport terminal, and, therefore, the respondents had been engaged by the Chief Engineer/ Project Director of the concerned project as and when the need arose. It was further averred that though the NITC project at one point had employed 681 workmen on daily wage basis, once the project was completed in 1986 the requirement for daily wagers no longer existed, the petitioner therefore, considered these daily wagers against the newly created regular vacancies by inviting applications from all daily wage workers who fulfilled the criteria, resulting in the regularisation of 132 workmen in Group-IV posts and 6 workmen against Group-III posts.
5. The parties led their respective evidence before the Labour Court and upon consideration thereof, the Court held that the respondents’ services having been terminated without payment of any retrenchment compensation to them, was illegal being in violation of Section 25F of the ID Act. The Court further observed that the petitioner’s action to dispense with the services of the respondents was also contrary to their assurance given to the Supreme Court in Jitender Kumar Vs. Union of India & Ors. AIR 1991 SC 240 that all daily wage workers, including the respondents, would be regularized. In these circumstances, the Labour Court vide its impugned award directed the petitioner to reinstate the respondents with 50% backwages.
6. Feeling aggrieved, the petitioner Management has filed the present petition assailing the award. Mr. Vaibhav Kalra, learned counsel for the petitioner submits that the very premise of the impugned award that the petitioner was required to comply with the provisions of Section 25F of the ID Act qua the respondents was erroneous. In doing so, the Labour Court failed to appreciate that the respondents had been engaged for short periods between 1985 and 1986, during the construction of the new international airport terminal; purely on a need basis and upon completion of the construction project, their services were no longer required and therefore, they were not engaged any further. He thus contends that since the respondents’ had been engaged by the petitioner temporarily on a daily wage basis, only for the duration of the construction project, neither was this a case of termination under the ID Act nor was the petitioner required to pay them any retrenchment compensation.
7. Mr. Kalra further submits that the Tribunal has misinterpreted the order of the Supreme Court to erroneously hold that the petitioner was in violation of its undertaking given to the Supreme Court without appreciating that the petitioner’s undertaking before the Supreme Court was to the effect that those the daily wage workers, including the respondents herein, who register themselves and apply for the available vacancies would be considered for regular employment by the petitioner, by granting them age relaxation and priority on the basis of their length of service. In compliance with this assurance, the petitioner had, keeping in view the limited number of available vacancies, regularised 132 workmen in Group-IV posts and 6 workmen against Group-III posts.
8. Without prejudice to his aforesaid submission that it was not a case of illegal retrenchment or termination, Mr.Kalra submits that even otherwise keeping in view the respondents’ nature of employment and their length of service which was in most cases less than one year, the direction to reinstate them with 50% back wages was wholly unwarranted. He submits that these directions have been passed by overlooking the fact that the respondents were all daily wage workers, appointed for the specific purpose of a construction project, i.e., NITC Project and on its completion, the petitioner had regularised as many workmen as possible, in view of the limited vacancies available. He, therefore, contends that even if the respondents’ retrenchment was treated as being in violation of Section 25F of the ID Act, the direction to reinstate them with 50% back wages was wholly unjustified; for this purpose, he places reliance on the decisions of the Supreme Court in Asst. Engineer, Rajasthan Dev, Corporation and Ors. Vs. Gitam Singh (2013) 5SCC 136 and this Court in Krishan &Ors. Vs. The Management of the Air Force School [LPA 305/2013] and The Director (Admn) National Airport Authority of India Vs. Suresh Kumar [WP(C) 23152/2005].He thus contends that the respondents were at best entitled to some reasonable monetary compensation and not reinstatement, especially in the light of the admitted position that they were all daily wage workers, most of whom had rendered services for total periods ranging between 8 months to 1½ years, with the exception of respondent No.32, who had rendered three years’ service. Finally he submits that 10 of the respondents herein have, during the pendency of the present petition, received huge amounts of about Rs.10,00,000/- as benefits under Section 17B of the ID Act and therefore, prays that the impugned award be set aside without granting any further compensation to the respondents.
9. On the other hand, Mr.Arya learned counsel for the respondent while supporting the impugned order submits that once the respondents’ termination was found to be in violation of not only Section 25F of the ID Act but also the petitioner’s own undertaking before the Supreme Court, there is no reason for this Court to interfere with the findings arrived at by the Labour Court or its direction under the impugned award. By placing reliance on the decisions of the Supreme Court in Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-cum-Labour Court, New Delhi & Anr. (1980) 4 SCC 44,Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & Ors. (2013) 10 SCC 324 and Tapash Kumar Paul Vs. Bharat Sanchar Nigam Limited (2014) 15 SCC 313, he submits that once the respondents’ termination was found to be illegal, they were entitled to be placed in the same position in which they would have been, but for their illegal termination. By drawing my attention to the decision of the Supreme Court in Surendra Kumar Verma (supra) he contends that when a workman’s termination is found to be illegal, he is entitled to reinstatement with full back wages and this relief of reinstatement may be denied only in case the grant thereof becomes impossible owing to closure of the industry; even the relief of full back wages can be denied only in exceptional cases. He further submits that this legal position has been recently reiterated by the Supreme Court in Deepali Gundu (supra) and, therefore, prays that the respondents should not be deprived of the relief of reinstatement with 50% back wages as granted under the impugned order, especially since they were illegally terminated from service more than 33 years ago and have been waiting for their rightful dues ever since.
10. I have considered the submissions of the learned counsel for the parties and with their assistance perused the record. In its challenge to the impugned award, the petitioner has primarily raised two grounds. The first being that since the respondents had been appointed only as casual labourers for short durations, there was no question of their services being terminated and, therefore, there was no occasion for the petitioner to comply with Section 25F of the ID Act. It has further been averred that the Tribunal’s finding that the petitioner’s failure to regularise the respondents is in breach of the orders passed by the Supreme Court, is incorrect and contrary to the record. Having perused the order passed by the Supreme Court in Jitender Kumar (supra), I am inclined to accept the petitioner’s contention that it had duly complied with its assurance given to the Supreme Court by regularising as many workmen as possible against the available vacancies. The petitioner had only assured the Supreme Court that the respondents and the other similarly placed workmen would be considered for regular appointment against the available vacancies, subject to their fulfilling the eligibility criteria. I am however unable to accept the petitioner’s plea that it was not obliged to follow the provisions of Section 25F of the ID Act. Once the respondents had completed more than 240 days of continuous service, in my view, it was incumbent upon the petitioner to scrupulously adhere to the provisions of Section 25F of the ID Act which it failed to do. In these circumstances, I find no infirmity in the Tribunal’s finding that the respondents’ termination was illegal, for being in violation of Section 25F of the ID Act.
11. Before I deal with the alternate submission of the petitioner that even if the respondents termination was found to be in violation of Section 25F of the ID Act, the Labour Court was not justified in directing the respondents reinstatement with backwages, it would be appropriate to note the length of service rendered by each of the respondents herein, by way of the following tabular compilation:- S.No. Name Date of Appointment Date of Termination Period of Service
1. Puran Chand 01.01.1985 01.07.1986 1.[5] year
2. Ranwat 28.06.1985 01.07.1986 1 year
3. Jai Bhagwan 27.06.1985 01.07.1986 1 year
4. Hukum Chand 29.06.1985 01.07.1986 1 year
5. Ram Chander 03.07.1985 01.07.1986 1 year
6. Vinod Kumar 01.08.1985 01.07.1986 11 months
7. Kishan Chand 27.06.1985 01.07.1986 1 year
8. Rakesh Kumar 02.08.1985 01.07.1986 11 months
9. Hawa Singh 19.09.1985 01.07.1986 10 months
10. Bali Ram 23.09.1985 01.07.1986 10 months
11. Rishi Raj Sharma 09.04.1985 01.07.1986 1 year 3 months
12. Mahinder Singh 01.07.1986
13. Paras Nath Pathak 16.09.1985 01.07.1986 10 months
14. Sohan Lal Saini 20.09.1985 01.07.1986 10 months
15. Jitendera 01.08.1985 01.07.1986 11 months
16. Sham Sher 02.09.1985 01.07.1986 10 months
17. Narain Singh 06.09.1985 01.07.1986 10 months
18. Attar Singh 13.09.1985 01.07.1986 10 months
19. Surender Kumar Sheravat 18.09.1985 01.07.1986 10 months
20. Sukhbir Dutt 03.10.1985 01.07.1986 9 months
21. Dil Bagh 05.11.1985 01.07.1986 8 months
22. Bresham Singh Yadav 01.11.1985 01.07.1986 8 months
23. Shiv Bhagwan 01.07.1986
24. Brahm Prakash 01.11.1985 01.07.1986 8 months
25. Gain Chand 01.11.1985 01.07.1986 8 months
26. Jagdish 13.05.1982 31.05.1986 3 years
12. Although both sides have sought to rely on decisions of the Supreme Court and of various High Courts in support of their respective contentions, I find that the common thread running through all these decisions is that a distinction has to be drawn between a daily wage worker and a permanent/regular employee. In cases where the services of a regular workman or a daily wager is found to be illegally terminated by resorting to unfair labour practices, the Court may be justified in directing reinstatement with back wages, however the quantum of back wages has to be determined by taking into consideration the period of service rendered by the workman, the financial condition of the employer and the nature of misconduct, if any. However, in a case where the termination of a daily wager or a casual employee is found to be illegal because of non-compliance of Section 25F of the ID Act, the direction for reinstatement with back wages cannot be automatic. The primary reason for this difference between the reliefs to be granted to a casual labourer/daily wager viz. a permanent employee, as observed by the Supreme Court in paragraphs 33 to 35 of its decision in Bharat Sanchar Nigam Limited Vs. Bhurumal (2014) 7 SCC 177, is that a daily wager or a casual employee, even if reinstated, can be terminated by payment of retrenchment compensation and notice pay, as per Section 25F of the ID Act; in which circumstances, the grant of the relief of reinstatement to such daily wagers would not be appropriate. These observations of the Supreme Court read as under:- “33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25- F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1: 2006 SCC (L&S) 753] ]. Thus when he cannot claim regularisation 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 inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.
13. In the same vein, reference may also be made to paragraph nos.22 to 24, 27 and 28 of the decision in Assistant Engineer Rajasthan Development Corporation and Anr. Vs. Gitam Singh (2013) 5 SCC 136 wherein the Supreme Court, after considering its earlier decisions, has observed as under:- “22. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that the dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief.
23. We shall now consider two decisions of this Court in Harjinder Singh [Harjinder Singh v. Punjab State Warehousing Corpn., (2010) 3 SCC 192: (2010) 1 SCC (L&S) 1146] and Devinder Singh [Devinder Singh v. Municipal Council, Sanaur, (2011) 6 SCC 584: (2011) 2 SCC (L&S) 153] upon which heavy reliance has been placed by the learned counsel for the respondent.
24. In Harjinder Singh [Harjinder Singh v. Punjab State Warehousing Corpn., (2010) 3 SCC 192: (2010) 1 SCC (L&S) 1146] this Court did interfere with the order of the High Court which awarded compensation to the workman by modifying the award of reinstatement passed by the Labour Court. However, on close scrutiny of facts it transpires that that was a case where a workman was initially employed by Punjab State Warehousing Corpn. as work-charge motor mate but after few months he was appointed as work munshi in the regular pay scale for three months. His service was extended from time to time and later on by one month's notice given by the Managing Director of the Corporation his service was brought to end on 5-7-1988. The workman challenged the implementation of the notice in a writ petition and by an interim order the High Court stayed the implementation of that notice but later on the writ petition was withdrawn with liberty to the workman to avail his remedy under the ID Act. After two months, the Managing Director of the Corporation issued notice dated 26-11-1992 for retrenchment of the workman along with few others by giving them one month's pay and allowances in lieu of notice as per the requirement of Section 25-F(a) of the ID Act. On industrial dispute being raised, the Labour Court found that there was compliance with Section 25-F but it was found that the termination was violative of Section 25-G of the ID Act and, accordingly, the Labour Court passed an award for reinstatement of the workman with 50% back wages. The Single Judge of that High Court did not approve the award of reinstatement on the premise that the initial appointment of the workman was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50% back wages by directing that the workman shall be paid a sum of Rs 87,582 by way of compensation. It is this order of the Single Judge that was set aside by this Court and the order of the Labour Court restored. We are afraid the facts in Harjinder Singh [Harjinder Singh v. Punjab State Warehousing Corpn., (2010) 3 SCC 192: (2010) 1 SCC (L&S) 1146] are quite distinct. That was not a case of a daily-rated worker. It was held that the Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and 16. Harjinder Singh [Harjinder Singh v. Punjab State Warehousing Corpn., (2010) 3 SCC 192: (2010) 1 SCC (L&S) 1146] turned on its own facts and is not applicable to the facts of the present case at all. ….
27. In our view, Harjinder Singh [Harjinder Singh v. Punjab State Warehousing Corpn., (2010) 3 SCC 192: (2010) 1 SCC (L&S) 1146] and Devinder Singh [Devinder Singh v. Municipal Council, Sanaur, (2011) 6 SCC 584: (2011) 2 SCC (L&S) 153] do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.
28. We may also refer to a recent decision of this Court in BSNL v. Man Singh [(2012) 1 SCC 558: (2012) 1 SCC (L&S) 207]. That was a case where the workmen, who were daily wagers during the year 1984-1985, were terminated without following Section 25-F. The industrial dispute was raised after five years and although the Labour Court had awarded reinstatement of the workmen which was not interfered by the High Court, this Court set aside the award of reinstatement and ordered payment of compensation. In paras 4 and 5 of the Report this Court held as under: “4. This Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25-F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.
5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged as „daily wagers‟ and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice.”
14. The respondents’ reliance on the decisions in Surendra Kumar Verma (supra) and Deepali Gundu (supra) wherein it has been that reinstatement with back wages is the normal rule in cases where the workman’s retrenchment is found to be illegal on account of violation of Section 25F of ID Act, has to be considered against the recent decisions in State of Uttarkhand Vs. Raj Kumar (C.A. Nos. 124-125/2019), Regional Manager Vs. Dinesh Singh (C.A. No. 3197/2019) and Deputy Executive Engineer Vs. Kuberbhai Kanjibhai (2019) 4 SCC 307 whereunder the Supreme Court, while dealing with the illegal termination of daily wage workmen or muster roll employees who had worked for short periods, has substituted the direction for reinstatement with back wages passed by the Labour Court to that of payment of a lump sum compensation of Rs.1,00,000/- in each case. In fact, the decision in Deepali Gundu (supra) is wholly inapplicable as in the said case, the Supreme Court was dealing with the illegal termination of a permanent employee of a school, unlike the present case where the respondents were all casual labourers who had been engaged with the petitioner for a brief period of time.
15. Thus on examining the decisions of the Supreme Court in disputes of such nature, it emerges that even if the termination of a daily wage worker or casual labourer is found to be illegal for violating Section 25F of the ID Act, the Labour Court has to remain mindful of all relevant factors before deciding on the relief to be granted, including the manner of appointment, the length of service rendered by the workman and the ground on which his termination is found to be illegal. A daily wage worker, who had worked for a few years and whose termination is found to be illegal on account of noncompliance of Section 25F of the ID Act, cannot claim or be granted automatic reinstatement with backwages.
16. When the facts of the present case are considered with the periods of service rendered by the respondents as noted in the table above, it is evident that all the respondents were casual labour appointed during the construction project and most of them had rendered service for barely one year. Since the petitioner has already regularised similarly placed daily wage workmen against vacancies which arose in regular posts wherever possible, this is not a case of unfair labour practice merely because the proceedings have been pending in one Court or the other for the last many years and it certainly cannot be a ground to uphold the direction for reinstating the respondents with backwages. The impugned award is therefore unsustainable and is accordingly set aside.
17. The only surviving question for my consideration now is as to what would be a reasonable quantum of compensation to be granted in the facts of the present case. Learned counsel for the petitioner, by placing reliance on the decisions of this Court in Delhi Stock Exchange & Anr. Vs. K.C. Sharma & Ors. [(2002) 98 DLT 234 (DB)] and Shri Suresh Kumar (supra), has contended that the respondents are not entitled to receive compensation exceeding Rs.1,50,000/-, especially since all the respondents who were within the age of superannuation and unemployed have already received a sum of over Rs.10,00,000/- each, by way of benefits under Section 17B of the ID Act. In fact, in K.C.Sharma (supra), this Court while dealing with the issue of granting compensation in lieu of reinstatement had observed that it is not possible to lay down any fixed formula for determining the same and even though some amount of guess work is involved in such determination, the Court must take into consideration important factors such as nature of employment, age of the employee, length of service and last drawn wages. In Shri Suresh Kumar (supra) which involved another employee of the petitioner herein, who had also rendered service for a little over one year, like the present respondents, the Court had, after taking into account the long span of 21 years during which period the matter had remained pending, awarded the employee a lumpsum compensation of Rs.1,50,000/-. In the light of the ratio of the aforesaid decisions on the aspect of substituting the relief of reinstatement with lumpsum compensation and the fact that the respondents have waited 33 years to be granted the reliefs sought by them from the petitioner Management, when they had served it for a short period of one year, I am of the view that the interest of justice will be met by awarding a lumpsum of Rs.2,00,000/- to each of the respondents.
18. For the aforesaid reasons, the impugned award is set aside and the writ petition is allowed by modifying the directions of reinstatement with 50% backwages as awarded by the Labour Court, to that of payment of lumpsum compensation of Rs.2,00,000/- to each of the respondents. This amount would be in addition to the amount received by them under Section
17 B of the I.D Act. Even though the respondents had filed affidavits before this Court undertaking to refund the differential amount between the last drawn wages and minimum wages in case the writ petition were to be allowed, it is directed that no recovery on this count shall be made by the petitioner from the respondent-workman. The amount of Rs.2,00,000/- as directed would be released to the respondent within four weeks.
19. The writ petition is allowed and disposed of in the aforesaid terms. (REKHA PALLI) December 19, 2019 JUDGE „SDP‟