*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C)2537/1999
% Date of decision: 8th March, 2010
SHRI BALLEY ..... PETITIONER
Through: Mr. J.M. Kalia, Advocate.
Versus
M.C.D. & ORS ..... RESPONDENTS
Through: Mrs. P.L. Gautam, Advocate for R-1.
Mr.Nishakant Pandey, Advocate for R-2
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? YES
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner/workman seeks a writ of certiorari with respect to the award dated 9th December, 1998 of the Labour Court on the following reference:
"Whether the services of Shri Baley 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?"
2. The petitioner/workman was employed by the respondent as a Chowkidar in September, 1983 and so continued to work till 11 th May, 1988. The case of the petitioner was that on 12th May, 1988 he was orally informed that his services had been terminated with immediate effect; that WP(C)2537/1999 Page 1 of 8 neither was there any reason for such termination nor was he chargsheeted nor was any inquiry held. It was further his case that he sent demand notice and upon no reply being received to it, raised an industrial dispute on which reference aforesaid was made vide Notification dated 12 th April, 1989. Though the date on which the petitioner so raised the industrial dispute is not available but it can safely be presumed that it must be much before the date of notification and soon after his alleged termination on 12 th May, 1988. The respondent filed a reply to the claim of the petitioner before the Labour Court contending that it was not a case of termination of service but a case of desertion and abandonment; that it was in fact the petitioner who did not report for duty because he was arrested by the police and failed to join duties even after release from police custody. It was further pleaded that the petitioner was a casual / muster roll daily wager and the Conduct Rules and Control and Appeal Regulations of the respondent are not applicable to daily wager and casual workers. It is the case of the respondent that the petitioner did not report for duty from 10 th May, 1988 onwards; that the services of the muster roll workman were never terminated and in fact the petitioner himself abandoned the service.
3. The Labour Court found that the petitioner had not attended duties for the whole month of May, 1988, not even after he had been released from police custody on 11th May, 1988; that it had been proved that the petitioner had been arrested on the charge of the molesting a woman at the water pump of the respondent and convicted with fine of Rs.30/-. The Labour Court however relying upon the judgment of the Supreme Court in Himanshu Kumar Vidhyarthi Vs State of Bihar AIR 1997 SC 3657 held that the petitioner being a daily wager, the respondent was not required to comply with Section 25F of the Industrial Disputes Act. It was thus held that the petitioner is not entitled to any relief.
WP(C)2537/1999 Page 2 of 84. I may, at the outset, notice that the judgment in Himanshu Kumar Vidhyarthi (supra) on which alone the award is based has been discussed by this court in Management of Horticulture Department of Delhi Administration Vs Trilok Chand 82 (1999) DLT 747. In that case also the challenge to the award, holding the termination of services to be illegal and directing reinstatement, was inter alia on the ground that the workman was appointed as a daily wager for specific period and dispensation of services of such workman does not amount to retrenchment and termination could not be held to be illegal for non compliance of provisions of Section 25 F of the Act. This court held that the employer had failed to produce any material before the Labour Court to support that the appointment was seasonal or for a specified period and on the other hand the workman had given his evidence to the effect that he was appointed for indefinite period and was performing regular nature of job and had admittedly worked for more than 240 days in a calendar year. It was further held that the workman having worked for more than 240 days continuously, his termination would clearly be violative of Section 25F of the Act and that such a workman would clearly come within the definition of workman under Section 2 of the Act. Reliance was placed on a) L Robert D'Souza Vs. Executive Engineer Southern Railway 1982 SCC (L&S) 124 holding that even the casual or seasonal worker who rendered continued service for one year or more could not be retrenched on such ground without complying with the provisions of Section 25F of the Act; b) Rattan Singh Vs Union of India (1997) 11 SCC 396 holding that the provisions of Section 25F were applicable to termination of even a daily rated workman who had continuously served for requisite statutory minimum period for a year; c) Samishta Dubey Vs. City Board, Etawah (1999) 3 SCC 14; d) Municipal Corporation of Delhi Vs. Praveen Kumar Jain 1998 (9) SCC 468 to the same effect. It was further observed that Himanshu Kumar Vidyarthi was mainly decided on the ground that the concerned department WP(C)2537/1999 Page 3 of 8 was not to be treated as "industry" within the meaning of Section 2(j) of the Act and the Supreme Court had not taken into consideration the earlier cases decided by it holding to the contrary. It was further held that the subsequent judgments of the Supreme Court in Rattan Singh and the judgments in Praveen and Samishta Dubey (supra) had also held that the provisions of Section 25 F would be applicable even in the case of a daily rated workman. This court in the circumstances did not follow Himanshu Kumar Vidyarthi but followed the other judgments aforesaid.
Thus, the award in the present case relying solely on Himanshu Kumar Vidyarthi cannot be sustained.
5. The counsel for the respondent faced with the aforesaid sought to rely on Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 to contend that this court ought not to direct regularization of an employee /workman, as the petitioner in the present case, whose initial appointment is contrary to the scheme for public appointment.
6. What Uma Devi (supra) lays down is that the persons employed in such casual manner should not be given precedence over employment through the prescribed stream. However in the present case, nothing is disclosed as to what is the prescribed stream. I may also notice that recently in Maharashtra State Road Transport Corporation Vs. Casteribe Rajya P. Karamchari Sanghatana (2009) 8 SCC 556 it has been held that the powers of the Labour Court are very wide and once an unfair labour practice on the part of the employer is established, the Industrial and Labour Courts are empowered to issue preventive as well as positive directions to an erring employer and such issues pertaining to unfair labour practices were not at all referred to or considered in the Uma Devi case.
WP(C)2537/1999 Page 4 of 87. In the present case the petitioner was employed with the respondent for nearly five years. Such practice of continuing a workman as a daily wager while others similarly placed as him and performing similar duties are treated as regular employees would amount to an unfair labour practice. Even otherwise the courts have in a number of decisions treated such daily wagers as regular employees and held termination of their employment in a manner different from regular employees to be bad.
8. That brings me to the question of abandonment of services by the petitioner. The finding of the Labour Court is of the petitioner having not reported for service for the month of May, 1988 only. The stand of the respondent employer being of the petitioner having stopped reporting for duty after 10th May, 1998, such absence must be for remaining days only of the month of May, 1988. The question which arises is whether such absence even, if any, for less than a month, can be treated as abandonment and whether an employee can be treated as having ceased to be in employment on this basis. The counsel for the petitioner has contended that abandonment has to be such as to indicate no intention to rejoin the employment. He argues that in fact the petitioner was charged by the police for the incident of brawl with the others and for this reason was punished only with fine only of Rs.30/-.
9. I find the Division Bench of this Court in Shakuntala's Export House (P) Ltd Vs. Secretary (Labour) MANU/DE/0541/2005 to have held that abandonment amounts to misconduct which requires proper inquiry. The judgment of the Single Judge of this court upheld by the Division Bench is reported as 117 (2005) DLT 479. To the same effect is another judgment of this court in MCD Vs. Begh Raj 117(2005) DLT 438 laying down that if the workman had abandoned employment, that would be a ground for holding an inquiry and passing an appropriate order and that WP(C)2537/1999 Page 5 of 8 having not been done, the action of MCD could not have been sustained. The Supreme Court also in D.K. Yadav Vs J.M.A. Industries Ltd (1993) 3 SCC 259 has held that even where the standing orders of the employer provided for dismissing the workman from service for unexplained absence, the same has to be read with the principles of natural justice and without conducting domestic inquiry and without giving an opportunity of being heard, termination of service on the said ground cannot be effected. It may however be noticed that subsequently in Punjab & Sind Bank Vs. Sakattar Singh MANU/SC/0733/2000 it was held that no inquiry may be conducted where the standing orders of the Bank provided a procedure for treating such absentee employee to have deemed to have voluntarily retired after a particular period of unauthorized absnece.
10. However, in the present case no such standing orders have been shown nor any procedure in the said standing orders is shown to have been followed. In the present case admittedly no inquiry has been conducted and thus the defence of the respondent of termination of abandonment of employment is also not tenable. I may however record that the Labour Court has held the respondent to have issued a notice dated 12 th July, 1988 to have been issued to the petitioner regarding his unauthorized absence from the duty. However, no such notice is found on the record of the Labour Court summoned in this court.
11. The counsel for the petitioner has relied on Radhey Shyam Gupta v. U.P State Agro Industries Corporation Ltd. (1999) 2 SCC 21 Hari Ram Vs. Union of India (2006) 9 SCC 167 but the same are not found apposite to the controversy in hand.
WP(C)2537/1999 Page 6 of 812. The award of the Labour Court cannot thus be sustained and is liable to be set aside.
13. The question which arises is as to what relief the petitioner is entitled. Though two different views are evident from the judgments in Harjinder Singh Vs. Punjab State Warehousing Corporation MANU/SC/0060/2010 and Jagbir Singh Vs. Haryana State Agriculture Marketing Board AIR 2009 SC 3004 as to whether on termination the relief of reinstatement ought to be granted or not, I am, for the reasons mentioned below not inclined to reinstate the petitioner in the employment of the respondent:
(a). Firstly, the petitioner though worked for nearly five years did not raise any claim or dispute as to his regularization and was satisfied with continuing as a daily wager only. The only dispute which was referred was as to the termination of his employment.
(b). A long time of nearly 22 years has elapsed since when the petitioner has worked for the respondent. I have inquired about the age of the petitioner. He is informed to have been born in the year 1963. He would thus still have a substantial period of service left. Reinstating the petitioner at this stage will disturb the harmony in the cadre and may lead to several other disputes.
(c) The petitioner in the last over 22 years must have worked elsewhere and;
(d) The petitioner admittedly was, while in duty, involved in the offence either of molestation of a woman or of a brawl with the WP(C)2537/1999 Page 7 of 8 other workers. It is not found to be in public interest to reinstate such a workman in a public body as the respondent.
14. However, the petitioner would definitely be entitled to compensation in lieu of reinstatement. Considering that the petitioner had worked for the respondent for approximately five years and if had been reinstated, the respondent would also have been burdened with the family pension etc of the petitioner, damages/compensation for the sum of Rs.1,50,000/- is deemed appropriate.
15. The petition therefore succeeds. The writ of certiorari is issued quashing the award dated 9th December, 1998, and the same is modified in terms of the aforesaid, and the respondent is directed to pay a sum of Rs.1,50,000/- to the petitioner within four weeks of today failing which it shall incur simple interest also at 9% per annum till the date of payment. The petitioner is also awarded costs of Rs.15,000/- of these proceedings.
RAJIV SAHAI ENDLAW (JUDGE) March 8th, 2010 M WP(C)2537/1999 Page 8 of 8