Pyare Lal And Ors. vs New Delhi Municipal Committee
2007 Latest Caselaw 2367 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. The present appeal is filed by the appellants against the judgment and order dated 9th November, 2006 passed by the learned Single Judge dismissing the writ petition filed by the appellants herein.

2. The appellants herein were daily wagers/muster roll employees with the respondent-NDMC during the period from 1983 to 1987 and they were engaged as and when the work was available. On 1st January, 1987 the respondent dispensed with the services of the appellants herein pursuant to which an industrial dispute was raised before the learned Labour Court. The learned Labour Court after considering the matter passed an award dated 22nd November, 1999 thereby directing for reinstatement of the appellants but without back wages and continuity of service. Pursuant to the said award the respondent-NDMC re-engaged the appellants in service on 10th January, 2001 on muster roll basis as mazdoor and were posted in the Horticulture Department. The services of the appellants were dispensed with on 14th July, 2001 as the work for which they were engaged came to an end due to paucity of funds.

3. Being aggrieved, the appellants herein again raised an industrial dispute against their termination and a reference was made to the industrial tribunal in the following terms:

Whether the services of workmen whose names appear in annexure-A have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary Along with consequential benefits in terms of existing laws/government notifications and to what relief are they entitled and what directions are necessary in this respect Whether the workmen whose names appears in annexure-A are entitled to be regularised in the pay scale and post of Mali with consequential benefits and if so, what directions are necessary in this respect

4. The learned Industrial Tribunal vide its award dated 1st March, 2005 noticed the contentions raised by the workmen that termination of their services was illegal and unjustified as it was without notice or payment of compensation or gratuity etc. The management, on the other hand, defended the action on the ground that the workmen were engaged afresh w.e.f. 16.1.2001 as mazdoors on muster roll in the Horticulture Department for development work on a plot at Maidan Garhi. However, due to absence of requisite funds the development work on the said plot stood suspended and as such all muster roll mazdoors stood disengaged. The learned Labour Court noticed the earlier award dated 22nd November, 1999 and observed that the workmen had not been granted continuity in service and back wages. The learned Labour Court upheld the stand taken by the management and even observed that there is nothing on record to suggest that the workmen had completed 240 days in a year and, therefore, they do not fall within the provisions of Section 25 of the Industrial Disputes Act.

5. The workmen challenged the said award dated 1st March, 2005 before the learned Single Judge by filing a Writ Petition (C) No. 8608-11/2005 titled as Pyare Lal and Ors. v. N.D.M.C. which stands dismissed by the impugned order dated 12th December, 2006. The learned Single Judge noticed that the appellant workmen herein were daily wagers/muster roll employees, who were engaged as and when the work was available and cannot claim any right to be regularised. It was also noticed that the development work at Maidan Garhi had stopped due to lack of funds and the services of all daily wagers had been discontinued. As the contract has come to an end the appellant workmen do not have any right to be engaged further. The learned Single Judge relied upon the decision of the Supreme Court in the case of Secretary, State of Karnataka and Ors. v. Uma Devi(3) and Ors. observing that the appointment was contractual and came to an end on the conclusion of the contract.

6. Being aggrieved by the aforesaid judgment and order passed by the learned Single Judge present appeal is filed on which we heard the learned Counsel appearing for the parties.

7. The learned Counsel appearing for the appellants contended before us and also before the learned Single Judge that the appellants are entitled to be regularised in service as they were reinstated in service by award dated 22nd November, 1999. It is was contended that when the initial order of termination was set aside by the Labour Court and the appellants were ordered to be reinstated in service, they should be treated as continuing in service from the date on which they were engaged initially. The learned Single Judge on consideration of the said contention, rejected the same holding that the award dated 22nd November, 1999 had only reinstated the appellants in service and since the award was silent with regard to continuity of service, no such inference as suggested by the appellant could be drawn. For coming to the said conclusion, the learned Single Judge relied upon the judgment of the Supreme Court in APSRTC v. Abdul Karim . Learned Counsel for the appellant vehemently submitted that the workmen had completed 240 days and had continuously worked for an year as employment during the period 1983 to 1987 should be taken into consideration. He relied upon the earlier award dated 22nd November, 1999 in support of his contention that there are contradictions in the two awards and the service rendered during the period from 1983-1987 should be considered and taken into consideration for application of Section 25B of the Act.

8. The question whether on reinstatement an employee is entitled to continuity of service and all consequential benefits has been examined and considered by the Supreme Court in APSRTC v. Abdul Kareem , Maruti Udyog Limited v. Ram Lal and Ors. and J.K. Synthetics Ltd. v. K.P. Agrawal and Anr. . In APSRTC case (supra), the Supreme Court referred to an earlier judgment in the case of APSRTC v. S. Narsagoud wherein the Supreme Court had noticed difference between an order of reinstatement with direction for continuity of service and reinstatement with a specific direction that the employee shall be entitled to all consequential benefits. In the former case an employee is not entitled to benefit of increments notionally for the period of absence merely because he has been reinstated with benefit of continuity in service. It is only in cases of reinstatement with complete back wages that the benefit of increments notionally, when the employee was not in duty or out of service, has to be granted. In the case of Maruti Udyog Limited(supra) the Supreme Court noticed the difference in Section 25F and Sections 25FF/25FFF. The latter sections provide for payment of compensation in cases of closure and transfer of an undertaking whereas under Section 25F, the workmen also get right to re-employment in case of revival of chance of employment under Section 25H.

9. In J.K. Synthetics Ltd.(supra) the Supreme Court held that on reinstatement full back wages cannot be claimed as a matter of right automatically or as a natural consequence. A pragmatic view has to be taken keeping in view the facts and circumstances of the case and also whether the employee was working elsewhere during the period. Decision in G.M. Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591, was also noticed and it was held that there is a misconception that upon reinstatement, continuity of service or consequential benefits flow as a matter of consequence. An order in this regard is required to be passed when order of reinstatement in service is passed and Courts or Tribunal have to apply their judicial mind before issuing any such direction. Even when back wages are awarded along with an order of reinstatement, the Court or Tribunal need not award continuity in service or consequential benefits. Similarly in cases where continuity of service is directed to be granted, it is for the purpose of pension/retirement benefits and not for other benefits like increments/promotion etc. Nature and character of the order passed, whether an employee has been fully exonerated, whether he is guilty of misconduct, or whether an employee has been subjected to frivolous enquiry due to petty misconduct or with a view to victimize him and or excessive punishment is awarded have to be kept in mind. Such cases fall under exceptions, and in such cases consequential benefits can be granted.

10. We have examined the award dated 22nd November, 1999. In the said award only direction for reinstatement in service has been awarded. There is no order for payment of back wages, which were specifically denied. There is also no order for continuity of service and consequential benefits.

11. Examination of the award dated 22nd November, 1999 shows that the appellants-workmen had taken the plea that they were entitled to the protection under Section 25F of the Act as they had completed 240 days of service in a year with the respondent. The said plea raised by the appellant was not accepted by the Labour Court after referring to photocopy of muster rolls which had been produced and placed on record. The industrial adjudicator recorded that the submissions made by the workmen that the appellants workmen were entitled to benefit of Section 25F was not tenable and acceptable, as the workmen had been given specific days when they had to start the work and the day on which they were asked to stop the work and were discharged. Relief was granted to the appellants workmen for violation of the rule "last to come, first to go" and in that context it was held that the management had violated Section 25G and 25H of the Act, therefore, direction for reinstatement was made. However, as already stated above, no order for payment of back wages was made. There was no evidence or allegation that the workmen had remained unemployed after termination or in spite of efforts they could not secure alternative employment.

12. The claim statement filed by the appellants after their termination with effect from 14th July, 2001 again proceeded on the rule "last to come, first to go". There was no allegation in the claim petition that the appellants had been in continuous employment of the respondents for a period of one year or more. On the other hand it was alleged that the appellants had asked for regularisation, as services of someother casual employees who were juniors to them had been regularised. In this context respondent-management-NDMC submitted that there was no continuity of service and the appellants-employees cannot be given benefit of seniority and the 2001 appointment was treated as fresh appointment. The witness of the management-NDMC Mr.N.S. Pradhan (MW-4) was not even cross examined in this respect.

13. The learned Industrial Adjudicator while examining contentions raised by the parties referred to the earlier award dated 22nd November, 1999 and noted that the appellants had been granted reinstatement but without back wages. It was also noted that the appellants had not been granted continuity of service. In that context the Industrial Adjudicator had observed that the appellants had not completed 240 days in a year and therefore they are not entitled to protection under Section 25F of the Act. In the writ petition filed against the said award dated 1st March, 2005 the appellants had again relied upon Section 25H and Section 25G of the Act and had submitted that juniors to the appellants had been regularised and, therefore, there was violation of the rule "last to come, first to go". The question of 240 days or continuous employment for one year and violation of Section 25F of the Act were not specifically raised. No reference was made to Section 25B and the factum that the appellants had completed continuous service of one year as defined in the said provision. This new ground and claim based on Section 25B and 25F was urged and submitted during the course of arguments before us and in view of the facts and circumstances stated above, is liable to be rejected as being without any merit.

14. In view of the above discussion we find no infirmity in the order passed by the learned Single Judge. There is no merit in this appeal and the same is dismissed.