Government Of National Capital ... vs Om Prakash & Ors.
1999 Latest Caselaw 92 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition by the Government of NCT Delhi has been filed against the impugned award dated 16th May, 1995. The award grants reinstatement to 2 workmen i.e. respondents 1 & 2. The challenge to the award is founded mainly on the averment that the witnesses of the petitioner had stated that the workmen had abandoned the work and thus the claim for reinstatement warranted dismissal.

2. The evidence of T.C. Sharma, Junior Engineer relied upon by the learned Counsel for the petitioner makes an interesting reading and reads as follows : "That as per my memory, Shri Om Parkash and Shri Sube Singh were employed as a daily wage workers as per agreed terms and condi tions of employment for specific period on specific wages and for specific jobs on purely temporary basis".

Significantly this stand was not taken in the written statement filed on behalf of the petitioner before the Labour Court on 16th November, 1985. This stand of abandonment obviously an afterthought. This apart the witness on behalf of the petitioner/respondent had made a statement without any reference to the record based purely on memory and such evidence cannot be given credence even if departure from the written statement was to be permitted.

3. The learned Counsel for the petitioner, further stated that in any event assuming without admitting the award was sustainable, it was not proper to grant full back wages at the rates awarded in view of the fact if the petitioner had not made a claim that they were unemployed in their statement. For this purpose learned Counsel for the petitioner relied upon the statement of the petitioner wherein he had not made any statement regarding his not being employed. Learned Counsel for the petitioner is right in this plea. However, in an application under Section 17B of the Industrial Disputes Act filed on 7th December, 1997, in this Court alongwith an affidavit it has been stated that the applicants were unemployed since 1st January, 1985, and after the award dated 16th September, 1995, and that they did not have any means for even their bare subsistence.

4. It is true that in the original statement this was not so stated and the statement was made subsequently in an affidavit filed in this Court. Accordingly, it would not be proper to grant full back wages to the respondents even upon the upholding of the award. It was also stated that the respondent No. 2 Sube Singh has during the pendency of the writ petition crossed the age of retirement.

5. Learned Counsel for the petitioner relied upon a judgment of the Hon'ble Supreme Court reported as 1994 (27) ATC 78 to contend that backwages should not be paid to the workmen working as casual labour. This judgment does not help the petitioner because apart from the finding being based upon the facts of the case in the present case the workmen were temporary and not casual and this is clear even from the statement of Shri T.C. Sharma, Junior Engineer (Civil), who appeared on behalf of the petitioner management and deposed before the Labour Court, extracted herein above. The Tribunal had rightly recorded that the workmen were employed by the petitioner for over 15 years. Further the Tribunal has relied on the admission of the management that the workmen had been in the employment of the management for the last 15 years. The Tribunal has also relied upon Section 2(oo) of the Industrial Disputes Act, 1947, construe that the impugned action was tantamounted to retrenchment. The Tribunal also held that Section 25F of the Act was not complied with.

In view of the above facts and circumstances, I am satisfied that the award does not call for any interference except on the point of backwages and accordingly the writ petition is dismissed. However, the award dated 16th September, 1995, is modified to the extent that the respondents be paid 75 per cent of the backwages as per the impugned award. The amount of backwages so calculated be paid to the respondents within 6 weeks from today. The writ petition is dismissed with the above modification to the extent of backwages and it is further directed that the amount due to Sube Singh (respondent No. 2) be paid only upto the date of his superannuation.

List this matter on 14th April, 1999, for reporting compliance.