Municipal Corporatin Of Delhi vs Shri Ram Pal And Anr.
2005 Latest Caselaw 111 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition challenges the award dated 12th May, 2000 passed in I.D. No. 1541/88, 56/95. The said award directed the reinstatement but did not grant any back wages. The impugned award is challenged interalia on the ground that the petitioner was engaged for a specific period that too on compassionate appointment on the death of his father and on the same terms and conditions of appointment of his father.

2. The impugned award dated 12th May, 2000 notes that the respondent was appointed as a daily wager under the Minimum Wages Act on the same terms and conditions as applicable to his father's post, however, the terms and conditions of his father's appointment have not been brought on record.

3. The impugned award records a finding that the respondent workman was a daily wager. It also notes that the work and conduct of the workman was found to be satisfactory as adduced by the Management's witness Shri S.P. Vip. It also recorded that the evidence also disclosed that neither any memo or chargesheet was given nor notice or notice pay was offered or paid.

4. The Labour Court's order is not based on the foundation of working of respondent No. 1 for 240 days. Even though there is no finding recorded by the Labour Court on the applicability of Section 25F of the Industrial Disputes Act (hereinafter referred to as the 'Act'), the learned counsel for the respondent has referred to paragraphs 4(iv) & (viii) of the statement of claim, in which it has been averred that juniors to the respondents having been retained in service and discriminatory treatment contrary to the mandate Section 25F(a) & (c) and G & H of the Act, has been meted out to the respondent workman.

5. The learned counsel for the respondent has also cited judgments of the Hon'ble Supreme Court in Samishta Dube vs. City Board, Etawah & Anr, 1999 II AD (S.C.) 257 and the judgment of this Court in Gopal vs. MCD & Anr., 2003 VI AD (DELHI) 256. In these judgments, it was held that even though the workman may not have completed 240 days of service he was nevertheless entitled to rights available under Section 25G & H of the Act.

6. The learned counsel for the respondent has also relied on the judgment of the Hon'ble Supreme Court in S.M. Nilajkar and Ors. vs. Telecom District Manager, Karnataka, and in particular relied upon paragraph 13 which reads as under:-

"13. The termination of service of a workman engaged in a scheme or project may not amount to retrenchment within the meaning of sub-clause (bb) subject to the following conditions being satisfied :

(i)     that the workman was employed in a project or scheme of temporary duration;
 

(ii)  the employment was on a contract, and not as a daily-wager simpliciter, which provided inter alia that the employment shall come to an end on the expiry of the scheme or project;
 

(iii)  the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract; and
 

(iv)  the workman ought to have been apprised or made aware of the above said terms by the employer at the commencement of employment."
 

7. In my view, in order to succeed the petitioner ought to have shown that the workman was employed for a specified period for a specific scheme or project and such a case ought to have been pleaded in the written statement. The written statement filed by the petitioner merely states that the workers used to be appointed as daily wager for a specific period. No reply to the plea of juniors being retained raised by the respondent, has been given and the only plea taken by the learned counsel for the petitioner in the written statement is that since the engagement was for a specific period, the question of seniority and the applicability of Section 25G & 25H does not arise.

8. The Hon'ble Supreme Court in S.M. Nilajkar's judgment (supra) has dealt with the effect of Section 2(oo)(bb). Paragraph 13(ii) of the said judgment clearly held that if the employment was on a contract and not as a daily wager simpliciter which provided inter alia that the employment shall come to an end on the expiry of the scheme or project, then Section 2(oo)(bb) shall not apply. In the present case while it has been pleaded by the petitioner that the respondent was a daily wager, there is no averment that the workman was employed in a specific project or a scheme for temporary duration or that the employment came to an end on the expiry of the specified scheme or project. In the present case, the pleading is to the effect that the respondent was a daily wager and that the workers used to be appointed on daily wages for a specific period depending upon the malaria nuisance as per the terms and conditions of appointment letter and services are discontinued on the expiry of the said period. This averment of the petitioner has not been substantiated by the order of appointment. It does not specify a particular scheme which referred to employment during the Malaria nuisance.

9. The learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in State of Uttar Pradesh and Anr. vs. Kaushal Kishore Shukla, . In which the Hon'ble Supreme Court has held as follows:-

"The principle 'last come first go' is applicable to a case where on account of reduction of work or shrinkage of cadre, retrenchment takes place and the services of employees are terminated on account of retrenchment. But this principle is not applicable to a case where the service of a temporary employee are terminated on the assessment of his work and suitability in accordance with term and conditions of his service. On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service. The view taken by the High Court is not sustainable in law. [33D-H]"

10. In my view the above judgment would not apply because that was based on the assessment and suitability of an employee and it was held that when service of an employee are terminated on the assessment of his work and suitability then the principle of 'last come first go' does not apply. In my view the aforesaid principle of law laid down by the Supreme Court shall not be applicable to the present case because there was no assessment of work of the respondent being satisfactory, on the contrary his working was found to be satisfactory as deposed to by the petitioner/ MCD's own witness S.P. Vip.

11. Normally on reinstatement, full back wages should have been granted but the back wages have been denied in toto. Though the reasons recorded for denying back wages do not appear to be sustainable in view of the settled position of law yet in the interest of justice and considering the nature of employment and the fact that the appointment was a compassionate appointment, no interference in the impugned award denying the back wages is called for nor has such a challenge been made by the respondent workman.

12. Accordingly, the writ petition is dismissed in the above terms. All pending applications also stand disposed of accordingly.