Sri Aurobindo College (Evening) vs Shri Kallan
2006 Latest Caselaw 2187 Del

JUDGMENT

Manju Goel, J.

1. These writ petitions are directed against the Award dated 9.8.2005 in I.D. No.14/2002 passed by the Presiding Officer, Labour Court-IV, Delhi whereby the respondent has been granted compensation of Rs. 1,50,000/- on a finding that the termination of the services of the respondent without paying minimum wages was an act of unfair labour practice and against the principles of natural justice. The respondent had been engaged by the petitioner, a constituent college of the University of Delhi, on a day-to-day basis in the absence of one Mukesh, who was a Safai Karamchari in the college. Mukesh had not been keeping well and he had been absenting from his duties frequently and eventually he resigned on 8.11.2000. The respondent performed the duties of a Safai Karamchari on daily wages between 1997 to 2001. The college advertised the post after Mukesh resigned from the post. Admittedly, the respondent did not apply for the post. The respondent was not appointed following the procedure laid down for selection and employment for the post of Safai Karamchari in the petitioner college. The respondent worked in the college till 30.4.2001. He raised an industrial dispute. Vide a notification dated 7.6.2002 the dispute was referred to the Labour Court for adjudication in the following terms: Whether the services of Shri Kallan s/o Shri Janki Dass have been terminated illegally and/or unjustifiably by the management, and, if so, to what sum of money as monetary relief Along with consequential benefit in terms of existing Laws/Government Notification and to what other relief is he entitled and what directions are necessary in this respect.

2. The respondent in the statement of claim alleged that he has been a victim of unfair labour practice inasmuch as minimum wages prescribed by law has not been paid to him, that he was not given leaves and holidays as provided for in the Delhi Shops and Establishments Act, 1954, that the management/petitioners became unhappy when the respondent made demands for his dues and terminated his services without assigning any reason on which the respondent issued a legal notice claiming reinstatement with full back wages. The petitioner management denied the claim of the respondent by asserting that the respondent was not a regular employee in the college, that no legal provision of any kind has been violated, that the petitioner is not covered by the Minimum Wages Act and that the respondent did not work for 240 days or more in any of the years and, therefore, was not entitled to the relief of reinstatement and back wages.

3. Before the Labour Court both sides produced affidavits in evidence. The witnesses were cross-examined. The Labour Court observed that taking work from the worker for three continuous year without giving him minimum wages and without regularising him was an act of unfair labour practice. It, however, lamented that the post had since been advertised and had been filled on regular basis and, therefore, the respondent could not be regularised. The Labour Court, however, observed that since the respondent had worked for three years continuously, his termination was illegal and unjustified and directed payment of compensation amounting to Rs. 1,50,000/-. It was the workman's case that he had been working with the management since 1997 as a daily wager. The Presiding Officer, Labour Court has made no reference to the affidavit of the management. The witness of the management, who is the Administrative Officer of the college, has stated that the respondent was engaged only when Mukesh went on leave on account of his illness and that the respondent was engaged only on daily wages and was paid against vouchers. The vouchers were filed before the Labour Court. They were not disputed in the cross-examination of this witness. From the vouchers produced before the Labour Court, the total number of days on which the respondent worked with the petitioner college could be ascertained. In the present writ petitions the petitioners have given a chart prepared on the basis of the vouchers showing the number of days during which the respondent was employed with the petitioner. The chart is as under:

Date of voucher

Period

Number of days

Amount paid

30.7.1997

May June, 1997

Rs.

929/

16.10.1997

Sept October, 1997

Rs.

387/

04.12.1997

November,

Rs.

1471/

29.12.1997

December,

Rs.

1703/

4.2.1998

January,

Rs.

1393/

4.3.1998

February,

Rs.

1316/

31.3.1998

March,

Rs.

1625/

1.9.1998

August,

Rs.

1152/

7.10.1998

September,

Rs. 1728/

2.11.1998

October,

Rs.

1646/

30.11.1998

November,

Rs.

1811/

4.1.1999

December,

Rs.

1811/

2.2.1999

January,

Rs.

1975/

10.3.1999

February,

Rs.

1481/

31.3.1999

March,

Rs.

1646/

5.5.1999

April,

Rs.

1609/

6.8.1999

July,

Rs.

2146/

2.9.1999

August,

Rs.

1967/

29.9.1999

September,

Rs.

1788/

2.11.1999

October,

Rs.

2492/

3.12.1999

November,

Rs.

2059/

31.12.1999

December,

Rs.

2384/

1.2.2000

January,

Rs.

2059/

2.3.2000

February,

Rs.

1950/

31.3.2000

March,

Rs.

2276/

01.05.2000

April,

Rs.

2059/

12.6.2000

May,

Rs.

2492/

19.7.2000

June,

Rs.

2276/

12.10.2000

September,

Rs.

2344/

25.10.2000

October,

Rs.

1674/

1.12.2000

November,

Rs.

2790/

4.1.2001

December,

Rs.

2344/

31.1.2001

January,

Rs.

2455/

7.3.2001

February,

Rs.

2120/

9.4.2001

March,

Rs.

2120/

8.5.2001

April,

Rs.

1897/

4. This chart is not disputed. If the Labour Court had taken care to look at the vouchers and to assess the number of days during which the respondent had worked with the petitioner, it would not have made a comment that the respondent had worked for three years continuously with the petitioner.

5. In the 12 months preceding the date of his termination, the respondent had not worked for 240 days. The petitioner management was not required to comply with the provisions of 25F of the Industrial Disputes Act (in short the Act). Nor is it the case of the respondent that his termination is bad on account of non-compliance of the provisions of Section 25F of the Act.

6. Can it be said that for following unfair labour practice the termination becomes bad. Section 25T of the Act prohibits unfair labour practice. Unfair labour practice is defined in Section 2(ra). Unfair labour practice means any of the practices specified in the Fifth Schedule. Non payment of minimum wages or failure to grant weekly holidays have not been included in the Fifth Schedule and hence the petitioner cannot be said to have committed unfair labour practice. Further the consequences of adopting unfair labour practice is given in the provisions of 25U of the Act. This provision provides that any person who commits any unfair labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. There is no provision in the Industrial Disputes Act which says that if an employer commits unfair labour practice, he will be bound to keep a daily wager perpetually on its rolls. Victimization by way of illegal discharge or dismissal of a workman is an unfair labour practice. However, there is no finding in the Award that the respondent was victimized. Nor did the respondent make any effort to prove before the Labour Court that the management had victimized him.

7. The Labour Court observed "I am of the considered view that the act of taking work from the workman for three continuous year without giving him minimum wages and without regularizing him is a act of unfair labour practice. Workman has proved that he has worked for more than 3 years continuously on daily wage that the act of not regularizing him and not paying him benefit under Labour Laws is unfair labour practice. However, as the post has been filled by advertisement, workman cannot be regularised. He did not apply. However, since he has worked for more than 3 years continuously with the management and his termination is illegal and unjustified by oral order as held by judgment cited above."

There is no evidence which can provide basis for the observation. It is unfortunate that the Labour Court has mentioned several judgments but has not pointed out if in any of the judgments it has been found that in the situation, as in the present case, the workman was entitled to be reinstated for non- payment of minimum wages or for committing unfair labour practice. It is also unfortunate that the Presiding Officer, Labour Court did not at all mention in his judgment as to whether the petitioner management was covered by the Minimum Wages Act and what could be the minimum wages for the respondent and how the payment made was less than the minimum wages prescribed. The observation of the Labour Court as quoted above is totally unfounded.

8. Labour Court's Award that the respondent is entitled to reinstatement and back wages and further that in lieu thereof he is entitled to any compensation is entirely incorrect. Since the judgment is not based either on fact or law, the same is perverse and needs to be quashed.

9. However, before parting with the case, it is essential to point out that even if the Labour Court's opinion that the respondent was entitled to compensation is taken to be correct, the Award of Rs. 1,50,000/- cannot be approved of. The respondent was a daily wager Sarai Karamchari and had worked for broken period between 1997 to 2001. On what basis this compensation of Rs. 1,50,000/- was found to be appropriate, has not been disclosed by the Labour Court. Mr.Rajendra Dhawan, counsel appearing for the petitioners has cited a few judgments in which compensation has been awarded by the Supreme Court in matters where termination has been found to be illegal but reinstatement could not be awarded. In Nagar Mahapalika (Now Municipal Corporation) v. State of U.P. and Ors. certain workmen who were appointed as apprentices in the Assessment Department of the Municipality for more than two years were granted compensation for their termination without complying with the provisions of Section 25F of the Act of Rs. 30,000/- per person. The workmen in that case were working as Clerks and had continuously worked for more than two years. They were not daily wagers and were workmen of a higher category. In Municipal Council, Sujanpur v. Surinder Kumar the workman who was working on a supervisory post and was expected to look after development work being carried out under the Nehru Rojgar Yojna was granted compensation on his termination amounting to Rs. 50,000/-. In State of N.P. and Ors. v. Arjunlal Rajak , a workman terminated in violation of Section 25F of the Industrial Disputes Act was granted compensation of Rs. 10,000/-. There should be some nexus between the nature of job performed and the salary of the workman and the compensation that is proposed. On the respondent's own showing, he was getting Rs. 1897/- per month from the petitioner. It is not understood how the Labour Court could grant a compensation amount as high as Rs. 1,50,000/- by way of compensation. Compensation, for wrongful termination, should be awarded on the basis of loss suffered by the termination which should be equivalent to the loss of wages which the workman may suffer for his unemployment following the wrongful termination. Therefore, the Labour Court should take into account the number of months which the workman may take in finding an alternative suitable job for himself. The compensation cannot be given to enrich an unlawfully terminated workman.

10. In the present case, the respondent in his own testimony has said that after his alleged termination he has been pulling on by working as a labourer and he has been getting work for 15-20 days in a month. The situation for him has not worsened by his alleged termination as even with the petitioner management the respondent was working approximately for a period of 15-20 days every month. Had the Labour Court taken care to go through the cross- examination of the respondent, it would not have granted any compensation, what to speak of a sum of Rs. 1,50,000/-.

11. The writ petitions are accordingly allowed and the impugned Award quashed with the findings as above. CM 12205/2005 is also disposed of. Interim orders dated 26.9.2005 passed in CM 12205/05 are hereby vacated.

12. Copies of the judgment be sent to all Presiding Officers of Labour Courts and Industrial Tribunals of Delhi for their guidance.