Air France vs Government Of Nct Of Delhi Through ...
2004 Latest Caselaw 1088 Del

JUDGMENT

Madan B. Lokur, J.

1. The grievance of the Petitioner is with respect to an Award dated 15th October, 1999 passed by the Labour Court in ID No.283/87. By the impugned Award, it was held that the Respondent/Workman is entitled to reinstatement and back wages. The Respondent superannuated on 1st August, 1994, well before the impugned Award and, therefore, there is no question of his reinstatement in service. The only question that survives, therefore, is with respect to back wages awarded to him.

2. On 22nd April, 1975, a consignment of 48 packages containing reptiles and animal skins sought to be smuggled out of India was seized at the international airport in Delhi by the customs authorities. Investigations were carried out by them and during the course of these investigations, a statement of the Respondent/Workman was recorded under Section 108 of the Customs Act, 1962 on 23rd April, 1975. It is said that the Respondent/Workman admitted his involvement in the attempt to smuggle out the goods but later on the Respondent/Workman retracted his statement.

3. In view of the alleged involvement of the Respondent/Workman in violating the provisions of the Customs Act, 1962, the Petitioner discharged him from service on 30th October, 1975. Feeling aggrieved by his discharge from service, the Respondent/Workman sought a reference under the Industrial Disputes Act, 1947 (the Act) but by an order dated 28th August, 1976, the Secretary (Labour), Delhi Administration, Delhi declined to refer any dispute under the provisions of the Act. The refusal to refer a disute was not challenged by the Respondent/Workman at any point of time.

4. In the meanwhile, proceedings were initiated against the Respondent/Workman for violation of the provisions of the Customs Act. By an order dated 30th June,1982, the learned Additional Chief Metropolitan Magistrate, New Delhi framed charges against the Respondent/Workman in respect of the criminal offence.

5. The Respondent/Workman filed a revision petition against the framing of charges but by an order dated 30th November, 1983, the revision petition was dismissed by the learned Additional Sessions Judge.

6. Simultaneously, adjudication proceedings were also initiated against the Respondent/Workman under the provisions of the Customs Act. It seems that the departmental authorities had taken a view against the Respondent/Workman but eventually by an order dated 31st January, 1985, an appeal filed by the Respondent/Workman against the departmental proceedings was allowed by the Customs Excise and Gold (Appellate) Tribunal (CEGAT).

7. On the basis of the decision rendered by CEGAT, proceedings were initiated by the Respondent/Workman in the High Court under Section 482 of the Cr.P.C. for quashing the prosecution pending before the criminal court. By an order dated 5th March, 1987, the High Court allowed the petition and quashed the proceedings pending against the Respondent/Workman in the criminal court.

8. Against the order passed by the High Court on 5th March, 1987, the customs authorities filed an SLP which came to be dismissed by the Supreme Court on 25th April, 1994. Consequently, till around the time of the Respondent/ Workman's superannuation on 1st August, 1994, proceedings were going on against him either before the authorities under the Customs Act or before the criminal court.

9. Some time in 1987, after the criminal proceedings were quashed by the High Court, he sought to raise an industrial dispute. On 14th July, 1987, a reference was made by the Secretary (Labour), Delhi Administration to the Labour Court with the following term of reference:-

Whether the termination of services of Shri S.K. Sinha is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?

10. The question referred for adjudication was decided in favor of the Respondent/Workman by the impugned Award.

11. As mentioned above, the only question that arises for consideration is whether the Respondent/Workman is entitled to any back wages. The question of reinstatement does not arise because the Respondent/Workman has already superannuated and learned counsel for the Petitioner stated in Court that the Respondent/Workman is not entitled to any retiral benefits.

12. The facts above mentioned would show that the Respondent/Workman had sought to raise an industrial dispute and have it referred to the Labour Court for adjudication but by an order dated 28th August, 1976 the Secretary (Labour) declined to refer the dispute for adjudication. The Respondent/Workman thereafter kept quiet for almost eleven years and it is only on 14th July, 1987 that a reference was made. By the time the reference was answered in 1999, the Respondent/Workman had already superannuated.

13. It has been held in a large number of cases that where there is an enormous delay in raising an industrial dispute, full back wages ought not to be granted to the Respondent/ Workman. (See, for example, Gurmail Singh vs. Principal, Government College of Education, (2000) 9 SCC 496; Executive Engineer vs. C. Guddappa, ; Karnataka Power Transmission Corpn vs. Amalgamated Electricity Co. Ltd, (2001) 1 SCC 586 and S.M. Nilajkar vs. Telecom District Manager, . In fact in S.M. Nilajkar, it was held that even if the delay is not attributable to the Respondent/Workman, he would still not be entitled to back wages.

14. So far as the present case is concerned, there is no doubt that because the Respondent/Workman was embroiled in criminal proceedings, there was no question of his employed with the Petitioner or being paid any back wages for that period. Even otherwise, though the criminal proceedings were eventually quashed by the High Court on 5th March, 1987, the matter was still alive in the Supreme Court which ultimately dismissed the SLP on 25th April,1994, which is only a few months before the date of superanuation of the Respondent/Workman on 1st August, 1994. Effectively, therefore, there was no question of the Respondent/Workman having put in any service with the Petitioner after his discharge till the disposal of the SLP by the Supreme Court. The Respodent/Workman, therefore, cannot be granted any back wages for this period.

15. Additionally, the allegation against the Respondent/ Workman was fairly serious, namely, of his involvement in a criminal case of smuggling. Although learned counsel for the Respondent/Workman submitted that his client was found not guilty, and in fact the proceedings against him were quashed by the High Court, the fact remains that there remained a question mark over the integrity of the Respondent/Workman during the entire period.

16. Under the circumstances, following the decisions of the Supreme Court mentioned above, and taking into consideration the fact that the Respondent/Workman could not have worked with the Petitioner until a few months prior to his superannuation, as well as the fact that the allegation against the Respondent/Workman was of a fairly serious nature, I am of the view that he should not be granted any back wages.

17. Consequently, without going into the question whether the Respondent/Workman is entitled to reinstatement because it is an academic exercise, I would set aside the impugned Award and allow the writ petition. It is held that the Respondent/Workman will not be entitled to any back wages. However, the Petitioner will pay to the Respondent/Workman litigation expenses of Rs.7,500/-.