Roshan Lal vs Municipal Corporation Of Delhi ...
2000 Latest Caselaw 71 Del

ORDER

A.K. Sikri, J.

1. Petitioner was appointed as Lab. Assistant on 5.2.1974. His services were terminated. He raised industrial disputes against his termination which was referred for adjudication by the Labour Court with the following terms of reference. "Whether the termination of services of Shri Roshan Lal is legal and justified and, if not, to what relief is he entitled and what directions are necessary in this respect ?"

2. After adjudication the learned Labour Court passed Award dated 26.5.89 holding termination to be illegal and reinstating the petitioner with 75% of back wages. Operative part of the Award dated 26.5.1989 reads as under:-

20. "However, considering the circumstances of this case I feel that it would not be equitable to grant cent per cent back wages. The service of the workman was terminated on 20.6.1976 though according to the workman he was refused duty on 21.7.76. A long period has elapsed since then. The workman as seen above has married. It can therefore be logically assumed that the workman should not have remained unemployed throughout such a long period but he must have been doing some work in order to sustain himself. The management had also found that the workman had sought his employment by dubious means. I therefore feel that grant of 75% back wages would be fair to both the parties.

Conclusion

21. Award is therefore passed holding that the workman is entitled to reinstatement with continuity of service and 75% back wages in the scale he was getting at the time of appointment with corresponding revisions, if any".

3. Pursuant to the aforesaid Award, petitioner was reinstated back in service and was also given 75% back wages as awarded. The petitioner has filed this petition wherein petitioner claims the following reliefs :

"(a) that a writ in the nature of mandamus declaring that the petitioner is entitled to promotion as Assistant Chemist from the day his junior was promoted, seniority and full back wages :

(b) directing the respondents to promote the petitioner as Assistant Chemist and allow seniority above his juniors who have been promoted as Assistant Chemist and also to pay back wages :

(c) modify/amend the Award dated 26th May, 1989, published on 25 th September, 1989, for allowing full back wages to the petitioner along with interest instead of 75% as allowed by the learned Labour Court and

(d) Any other writ, direction, order as may be deemed fit and appropriate by this Hon'ble Court may also be granted".

4. Insofar as challenge to the Award dated 26.5.1989 to the extent that it grants 75% of back wages and claim of the petitioner that this award be modified and petitioner be granted full back wages is concerned, the same is not accepted. The perusal of the award shows that the Labour Court was conscience of the fact that when the termination is found to be illegal and unjustified, normal relief to which the petitioner is entitled to is the reinstatement with full back wages. However, in para-20 of the Award, Labour Court has given the reasons which persuaded it to exercise the discretion for grant of 75% of back wages instead of full back wages. Grant of 75% back wages on the facts stated in the Award is proper exercise of discretion and in this writ petition under Article 226 of the Constitution of India, I am not inclined to interfere with the discretion exercised by the Labour Court. Therefore, prayer (c) of the writ petition is declined.

5. However, as far as other prayers are concerned, petitioner is entitled to the same. The case of the petitioner is that persons junior to him were promoted as Assistant Chemist. He contends that he was appointed as Lab Assistant on 5.2.1974. Some persons junior to him were appointed as Lab Assistant on 16.8.1976. The services of the petitioner were, however, terminated which led to raising of industrial dispute and the passing of the Award dated 16.5.1989 by the Labour Court. During this period he remained out of employment. However, persons who were junior to him were promoted as Assistant Chemist. Once the termination of the petitioner's services is found illegal and unjustified and he has been reinstated in service, the effect of said Award is that the services of the petitioner were not terminated and he continued to be in service uninterruptedly. Therefore, he would be entitled to count the period during which he remained out of job and consequently it would be deemed that he was in continuous service since 5.2.1974 as Lab Assistant to which post he was appointed initially. If during this period certain persons junior to him are promoted, petitioner also becomes entitled to be considered for promotion from the date his juniors were promoted. In the counter-affidavit filed by the respondents the only ground taken is that petitioner did not claim promotion in the petition filed with the Labour Court. This ground is totally untenable in as much as reference made to the Labour Court was regarding the legality of termination. It is only when the question of termination is decided, which was in fact decided in favour of the petitioner by setting aside the same, that other consequential reliefs would follow. Therefore, treating the petitioner as in continuous service w.e.f. 5.2.1974 the case of the petitioner should have been considered for promotion. However, the rules relating to promotion to the post of Assistant Chemist have not been filed by either. This Court cannot straightway give the direction to the respondents to promote the petitioner straightway. The only direction which can be given is to consider the case of the petitioner for promotion to the next higher post, namely, Assistant Chemist in accordance with the rules. This consideration has to be w.e.f. the date his juniors were promoted to the said post and as per the rules which were prevalent at that time.

6. Accordingly, this writ petition is partly allowed. Direction is issued to the respondents to consider the case of the petitioner for promotion to the post of Assistant' Chemist w.e.f. the date his juniors were promoted in accordance with the rules existing at that time and in case petitioner is found suitable, he should be given promotion w.e.f. the date his juniors were promoted. This exercise be done within a period of two months from the date of receipt of this order.

7. In view of the aforesaid, this writ petition is disposed of. No orders as to costs.