Delhi High Court
Government Of National Capital ... vs Mrs. Kamlesh & Anr. on 1 August, 1995
Bench: L Prasad, R Lahoti
JUDGMENT
1. Pleadings are complete.
Rule D.B.
Heard the Counsel.
This petition is directed against the Award dated 21.7.94 made by Labour Court - III, Delhi, whereby the termination of services of respondent No. 1 having been held to be illegal and unjustified, she has been directed to be reinstated with continuity of service. The Labour Court has further directed full back wages as per the regular pay scale along with the D.A. and Addl. D.A. to be paid to the respondent No. 1.
2. The award is an ex-parte one against the employer. It appears that the employer had moved an application for setting aside the ex-parte proceedings which application has also been dismissed. The employer had moved an application for setting aside the ex-parte proceedings which application has also been dismissed. The employer has filed this writ petition feeling aggrieved by both the orders i.e. the order forming basis of the award and the order refusing to set aside the ex-parte proceedings.
3. It is not disputed that the respondent No. 1 is a workman. She was working as a Safai Karmachari w.e.f. 21.12.87 as a daily wager casual worker. She was being paid wages as fixed and revised from time to time under the Minimum Wages Act. Her services were terminated w.e.f. 7.5.1989 without assigning any reasons.
4. The labour Court held the termination violative of the provisions contained in Section 25F of the I.D. Act and hence set it aside. Vide para 9 the Labour Court has also recorded a finding that since the date of termination, the respondent No. 1 had remained unemployed and could not get a job inspite of her best efforts.
5. Before us the learned counsel for the petitioner/employer has raised three contentions : Firstly, that the Labour Court ought not to the proceeded ex-parte; and in any case there was a sufficient ground for setting aside the ex-parte proceedings and ex-parte award, and permitting a biparty hearing with participation of the employer; Secondly, even if the termination was held to be illegal, the respondent No. 1 being a daily wager casual worker, she should not have been allowed back wages; Thirdly, the respondent No. 1 could not have been allowed the regular pay scale Along with D.A. and Addl. D.A. and that much part of the award is beyond the scope of reference and subject matter of enquiry before the Labour Court.
6. Having heard the learned counsel for the parties, we are of the opinion that the petition deserves to be allowed in part. In so far as the ex-parte proceedings are concerned, it is clear that there was a default on the part of the employer in appearance before the Labour Court. An application for setting aside the ex-parte proceedings has been dismissed the Labour Court holding that there was no sufficient cause for default in appearance. That is a finding of fact binding on us while exercising jurisdiction under Article 227 of the Constitution. Though the petitioner has to brought on record the copy of the order disposing of its application for setting aside the ex-parte proceedings, however, a copy of the order has been made available for our perusal by the learned counsel for the respondent.
7. In so far as the award of back wages is concerned, it has been held by their Lordships of the Supreme Court in M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors. :-
Ordinarily, a workman whose service has been illegally terminated would be entitled to full back wages expect to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages.
8. Learned counsel for the petitioner has placed reliance on Sagir Ahmad v. Union of India & Ors. (1994) 27 ATC 78 (SC). There the employment of a casual labourer was terminated consequent to his conviction by a Criminal Court. The conviction was set aside by the Court of Appeal. Consequently his termination ceased to be good and the employee was directed to be reinstated. In such circumstances, their Lordships of the Supreme Court have held that there was no justification in awarding the back wages. Apparently, it was because the order of termination could not be found fault with on the date on which it was passed.
9. The case before us stands on a different footing. Here the Labour Court has held the order of termination dated 21.12.1987 itself to be bad and therefore the ordinary rule of reinstatement with back wages as propounded by the Supreme Court in the case of Hindustan Tin Works Ltd. (Supra) must follow, more so when there is a finding recorded by the Labour Court that in the period between wrongful termination and reinstatement the employee was not gainfully employed elsewhere and there is no reason to disbelieve this finding of fact.
10. The first two contentions of learned counsel for the petitioner, therefore, fail.
11. However, the third contention has to be upheld. Having adjudged the termination to be illegal the Labour Court could have directed the status quo ante to be restored but could not have also allowed relief which was beyond the scope of the terms of reference made to it. The question referred to the Labour Court was : Whether the termination of the services of Smt. Kamlesh is illegal and unjustified and if so to what relief is the entitled and what directions are necessary in this respect. It is apparent that while answering the question and making the award the Labour Court could to have further entered into and decided the question whether the employee was entitled to regular pay scale along with the D.A. and Addl. D.A.
12. For the foregoing reasons, the petition is allowed in part. The directions contained in the operative part of the award whereby the employee/respondent No. 1 has been allowed reinstatement with continuity of service and full back wages is maintained. Rest of the award allowing as per the regular pay scale Along with D.A. and Addl. D.A. to the respondent No. 1 shall be entitled to be reinstated back in service with full back wages calculated at the same rate at which she was being paid on the date of impugned termination subject to revision of rates under the Minimum Wages Act as may be applicable to her.
13. We may make it clear that we have expressed no opinion on merits of the question whether the respondent No. 1 is entitled to regular pay scale or not. She may raise that question before an appropriate forum if she may be inclined to do so.
14. No order as to costs.
