New Delhi Municipal Council vs O.P. Sethi And Ors.
1999 Latest Caselaw 441 Del

JUDGMENT

K. Ramamoorthy, J.

1. The petitioner has challenged the award of the Labour Court passed on the 6th of November, 1994. The learned Counsel for the petitioner submitted that:

1. The Labour Court was not within its jurisdiction to go into the questions referred to it in view of the earlier refusal by the Government to refer the matter on the ground that there was no demand.

2. The petitioner is not an industry within the meaning of the Industrial Disputes Act, 1947.

3. The view taken by the Labour Court on merits is not sustainable. ,

2. All the three questions had been answered by the Labour Court against the petitioner. The Labour Court framed the following issues for its consideration:

1. Whether the management is an 'Industry' as defined in Section 2(s) of the I.D. Act?

2. Whether the reference is not maintainable for the reasons mentioned in paras 2 and 3 of the preliminary objections of the W.S.?

3. As in the terms of reference.

3. On the first Issue, the Labour Court held that the management failed to prove, by producing necessary materials, that it had not come within the meaning of industry under Section 2(s) of the Industrial Disputes Act, 1947. The learned Counsel for the petitioner on this point submitted that even though the decision of the Supreme Court in The Bangalore Water Supply & Sewerage Board v. A. Rajappa and Ors., AIR 1978 SC 969 would apply the facts of this case, but the point had been referred to the Constitution Bench of the Supreme Court and, therefore, the determination of this question should await the decision by the Constitution Bench of the Supreme Court. I am not able to accept this submission. The decision of the Supreme Court in the Bangalore Water Supply's case still holds the field.

4. On Issue No. 2, the Labour Court rejected the case of the petitioner and the Labour Court had also observed that there is no question of limitation for making a reference under the Industrial Disputes Act, 1947.

5. On the third point, the Labour Court, rejecting the case of the petitioner, discussed the matter in the following terms:

"It is an admitted case of the management that the management had resorted to Clause 45 of the Punjab Municipal Act, 1911 without completion of the departmental enquiry. As such the charge levelled against the delinquent officer in the enquiry remained unproved resulting in stigma leading to discharge of the claimant. Such discharge is not only mala fide exercise of powers but also colorful application of provisions of the Punjab Municipal Act, 1911.

No Legislation could provide such colorful exercise of power under provisions like Clause 45(1) of the Punjab Municipal Act, 1911 which reads as under:

"In the absence of a written contract to the contrary every officer or servant employed by a Committee shall be entitled to one month's notice before discharge or to one month's wages in lieu thereof, unless he is discharged during a period of probation or for misconduct or was engaged for a specified term and discharged at the end of it."

The principles of natural justice which include right of hearing are always implied in exercise of powers under the said provision. It has been so observed by their Lordship in the similar circumstances wherein under standing orders it was provided that the workman can be discharged after continuous absence for a particular period. (Reference D.K. Yadav v. J.M.A. Industries Ltd., . It is also submitted by the learned A.R. for the workman that the amended Clause 45 of the Punjab Municipal Act, 1945 is not applicable to the workman as the amended Clause 45 came into existence in the year 1973 wherein word "or to one month wages in lieu thereof" were deleted.

In view of the old provisions it is contended that neither the claimant/workman was given one month's notice before discharge nor one month wages in lieu thereof Were paid to him. This argument is substantiated by Exs. WW-1/44 and 45 which are copies of resolution and office order. Ex.WW-1/45 reads as under:

"In pursuance of Committee's Resolution No. 299 dated 27.1.1968 the services of Shri O.P. Sethi, now working as Senior Clerk are terminated with immediate effect. He will be paid one month's wages in lieu of one month's notice."

On the strength of Ex.WW-1/45 it is argued that the termination of the workman with immediate effect without payment of one month's wages in lieu of one month's notice is illegal as made in violation of Clause 45 of the Punjab Municipal Act, 1911 as quoted above. Section 45 provides one month's notice or one month's wages in lieu thereof to be paid before discharge of the employee. MW-1 only states that the letter was sent to the workman on 12.2.68 for collecting a cheque No. 571869 dated 30.1.78 for Rs. 2997- Admittedly the services of the workman were terminated on 29.1.78 with immediate effect i.e. without payment of one month's wages at the time of termination or before termination of the services. Moreover, the workman has denied receipt of letter dated 20.1.78 as well as suggestion that he was offered one month's salary in lieu of notices. The management has also not proved that letter Ex.MW-3/1 was despatched from the Registry Branch.

In view of the above discussion, I hold termination of the workman vide resolution Ex. WW-1 /45 illegal being in violation of Clause 45 of the Punjab Municipal Act, 1911. Besides the termination being illegal the same has been made in violation of principles of natural justice and by way of punishment as stigma remains attached with the workman for want of completion of enquiry by the management. Such terminations have been defined as retrenchment Under Section 2(s) of the I.D. Act, 1947. The provisions as inserted in the year 1984 in Clause 2(oo)(bb) are not applicable to the workman as they are perspective in effect.

It is well settled law that retrenchment without compliance of Section 25F of the I.D. Act is inoperative and ineffective. The workman has deposed that he has made efforts to get alternative employment but could not get the same. It being so the workman deemed to be in service but for his date of superannuation i.e. 31st

March, 1991. During arguments it was stated that the date of birth of the workman is 4.3.1933.

Further I am of the view that the workman has sought the reference from the appropriate Government after inordinate delay in 1978 especially after adjudication of the first reference in 1971 without any sufficient cause. The management cannot be allowed to suffer for fault of the workman in raising the dispute at such a belated stage. Accordingly, I hold that the workman is entitled for reinstatement but for his age of superannuation in the year 91 with full wages w.e.f. 19.8.78 to which he would have been entitled had he been in service till 31st March, 91, i.e. the date of superannuation of the workman. The workman is not entitled to any other relief claimed in the petition in the circumstances of the case. The parties are left to bear their own cost of the litigation."

6. I do not see any error apparent on the face of the award passed by the Labour Court. In this view, the writ petition is liable to be dismissed. Accordingly, the writ petition is dismissed.

7. The amount deposited by the petitioner in this Court and lying in the shape of a cheque shall be released to the workman, respondent No. 1, by the Registrar of this Court. The Registrar shall deposit the cheque in Civil Courts Deposit A/c and after clearance of the cheque he shall make the payment to the workman on or before the 30th of June, 1999.

8. There shall be no order as to costs.