D.D.A. vs Mahabir Singh And Anr.
2007 Latest Caselaw 1645 Del

JUDGMENT

Hima Kohli, J.

1. By way of the present writ petition, the petitioner/ management has assailed the award dated 17.5.2002 passed by the Labour Court in I.D. No. 581/1994 (Old No.59/1991), whereunder the respondent/workman was held to be entitled to reinstatement with all consequential benefits as regards regularization of his services if admissible to him under the rules, but without back wages.

2. In a nutshell, the facts of the case are that a reference was made by the appropriate Government on 21.12.1990 to the Labour Court for adjudication in the following terms:

Whether Sh. Mahabir Singh has abandoned his services or his services have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect

3. The respondent/workman filed his statement of claim in April, 1991 claiming to have joined the employment of the petitioner/management as Mason w.e.f. 20th August, 1985. It was stated that the petitioner/management abruptly terminated his services w.e.f.20th October, 1986 on his demand of being made a regular employee and being given all the benefits under the law. It was stated that his services were terminated by the petitioner/management without following the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act'), and as such, the action was unjustified. It was also averred that the petitioner/management had reinstated many other Masons but failed to do so in the case of the respondent/workman.

4. On the other hand, the petitioner/management contested the claim of the respondent/workman and filed a written statement, wherein an objection was taken with regard to the maintainability of the claim on the ground that the petitioner/management was not an 'industry' as defined under Section 2(j) of the Act.

5. On merits, it was admitted that the respondent/ workman was engaged as a Mason on daily wages on muster roll and he remained absent from duty from 21.10.1985 to 19.12.1985 and 20.1.1986 to 19.2.1986 and did not attend his duty w.e.f. 20.10.1986 onwards and thus he abandoned the job without informing the petitioner/management.

6. Issues were framed on 16.4.1993. The first issue was as to whether the petitioner/management was an 'industry' under Section 2(j) of the Act and the second issue was in terms of the reference forwarded by the appropriate Government. It is recorded in the impugned award that in support of his claim, the respondent/workman filed his affidavit and appeared in the witness box, whereas on behalf of the petitioner/management, the Executive Engineer, West Division-7 filed his affidavit and his examination-in-chief was recorded as MW-1 on 1.12.2000 but thereafter, he did not appear in the court for his cross-examination despite being given repeated opportunities, and as none appeared for the petitioner/management w.e.f. 1.10.2001, it was proceeded ex parte, vide order dated 1.11.2001 followed by the impugned award dated 17.5.2002 assailed by the petitioner/management.

7. At the very outset, counsel for the petitioner/ management pleaded that the impugned award came to be passed against the petitioner/management on account of the fact that its witness did not appear in the witness box for cross-examination due to which the Labour Court held that the defense taken by the petitioner/management was contradictory. He contended that had the cross-examination of the said witness been carried out, the petitioner/management would have been able to establish its case that the respondent/workman had abandoned service himself. In support of the said contention, he drew the attention of the Court to the fact that as per the case of the respondent/ workman, his services were terminated on 20.10.1986, whereas the demand notice was sent by him to the petitioner/management after an inordinate delay of more than 3 years on 24.10.1989.

8. As regards the absence of the petitioner/ management before the Labour Court after 1.12.2000, the same has been sought to be explained in paras No.22 and 23 of the writ petition, wherein it is stated that on 1.12.2000, the examination-in-chief of MW-1 was recorded but his cross-examination could not be done on that day as the authorized representative of the respondent/workman was not present. As a result, the case was adjourned to 3.1.2001. In the meantime, a new Presiding Officer was transferred to the Court but as the notification conferring the statutory powers on him was awaited, the case was adjourned to 6.7.2001, on which date a request for an adjournment was made on behalf of the petitioner/management which was duly allowed and the case was adjourned to 26.9.2001.

9. It is stated that on 26.9.2001, the respondent/ workman asked for an adjournment on the ground that his authorized representative was not present on account of a by-pass surgery and the case was adjourned to 1.11.2001. In the meantime, there was a change in the panel of lawyers of the petitioner/management and the case file was returned by the previous counsel and was marked to a new panel lawyer immediately. But during the said process, none could appear before the Labour Court on 1.11.2001, on which date although the respondent/workman was present alone without his authorized representative, still the petitioner/ management was proceeded ex parte.

10. The panel lawyer, who was assigned the case by the petitioner/management, on receiving the file of the case from the department, inquired about the status of the case from the staff of the Labour Court and was informed that an ex parte award had been passed against the petitioner/management in the case. This fact was intimated by the panel lawyer to the officers of the petitioner/management on 9th September, 2002 and in the same month, a copy of the impugned award was received by the petitioner/management.

11. The explanation offered for the delay in filing the writ petition from September, 2002 till August, 2003 is that the case was sent to the Head of the concerned department for taking an administrative decision as to whether the award can be challenged before the court in accordance with the prescribed procedure or not. The matter was then referred to the legal department of the petitioner/management and some time elapsed due to the correspondence between the legal department and the concerned department of the petitioner/management. Thereafter, upon receiving an opinion from the legal department, the Head of the concerned department decided to file the present petition before this Court. The file was forwarded to the legal department for entrustment to a panel lawyer, who asked for certain documents for preparation of the writ petition which could be obtained only after inspection of the file of the Labour Court. Subsequently, the writ petition was drafted and was filed before this Court on 5.8.2003.

12. On merits, it is stated by the counsel for the petitioner/ management that the delay of 3 years on the part of the respondent/workman in raising an industrial dispute against his alleged termination goes to show that he had voluntarily abandoned the service of the petitioner/management and that the petitioner/management had never terminated his service, which fact was overlooked in the impugned award. The other ground raised by the petitioner/management to assail the impugned award was that the Labour Court had exceeded its jurisdiction by directing the petitioner/management to consider the case of the respondent/workman for regularization.

13. It was submitted that the dispute between the parties was not an `industrial dispute' as defined under Section 2(k) of the Act and that the dispute regarding regularization being outside the scope of 2(k) of the Act, required espousal by a Trade Union or support by a substantial number of employees of the Union to qualify as an industrial dispute, which factor was missing in the present case.

14. It was lastly stated by the counsel for the petitioner/ management that there is not much work for unskilled labour such as the respondent/workman with the petitioner/management as a large number of colonies in Delhi, which were previously under the jurisdiction of Delhi Development Authority (DDA), stand transferred to the Municipal Corporation of Delhi (MCD) for maintenance and thus, the reinstatement of the respondent/workman in the services of DDA shall place the DDA under undue financial burden.

15. On the other hand, counsel for the respondent/workman vehemently opposed the plea of the counsel for the petitioner/ management for setting aside the impugned award on the ground that the same was passed ex parte against the petitioner/management. He submitted that the petitioner/management could not seek to better its claim before this Court by raising pleas that were not raised before the Industrial Adjudicator. He submitted that the fact remains that the respondent/workman worked for the petitioner/management for a period of more than 240 days, in a calender year having joined duties on 20th October, 1985 and having worked till 19th October, 1986 and that the delay of 3 years has been duly taken into consideration in the impugned award by denying any backwages to the respondent/ workman while deciding the relief.

16. I have heard the counsels for both the parties and have perused the documents placed on the record. The explanation offered by the petitioner/management for not appearing before the Labour Court on 1.11.2001, when the impugned order was passed is plausible in view of a change in the panel of lawyers of the petitioner/management at the relevant time and it was only because of the said reason that none appeared on behalf of the petitioner/management on the said date. It is to be noted that when the case file was received by the new lawyer, he enquired about the status of the case and on getting to know that the petitioner/management was proceeded ex parte, he informed the petitioner/management accordingly. It is also to be kept in view that on all the dates prior to 1.11.2001, the petitioner/management was duly represented before the Labour Court. On 1.12.2000, the examination-in-chief of the MW-1 was recorded, but he could not be cross-examined as the authorized representative of the respondent/ workman was not present on that day. Thereafter the case was adjourned twice but not on the request of the petitioner/management and in fact on the second occasion, i.e., on 26.9.2001, an adjournment was sought by the respondent/workman and the case was adjourned to 1.11.2001. From the facts as stated above, it appears that except for one default on 1.11.2001, the petitioner management had been diligently and vigilantly pursuing the matter.

17. The reasons furnished for the delay in filing the writ petition can also not be out rightly rejected since the petitioner management is a Government organization and there may have been bonafide procedural delay in filing the writ petition due to inter-departmental correspondence of the petitioner management.

18. In view of the aforesaid facts and circumstances of the case, it is held that the petitioner management has made out just and sufficient cause for setting aside the exparte award dated 17.5.2002. At the same time, the scales have to be balanced by compensating the respondent workman for the prejudice caused to him by remanding the case to the Labour Court. Keeping in mind that the reference was made in the year 1991, the award was passed in the year 2002, and the matter is now being relegated to the stage of recording of evidence, it is considered appropriate to direct the petitioner to compensate the respondent workman for the loss of time and prolongation of the adjudication of reference made at his instance. Hence the exparte award is set aside subject to the petitioner management paying a sum of Rs. 15,000/- to the respondent workman, through counsel within a period of four weeks.

19. The parties are directed to appear before the Presiding Officer, Labour Court on 20th September, 2007 for further proceedings. The petitioner shall be granted one opportunity to produce its only witness for cross-examination, followed by arguments. Considering that the reference was made in the year 1991, the Labour Court shall make an endeavor to dispose of the reference as expeditiously as possible, and preferably within a period of six months. With these directions, the writ petition and the pending application are disposed of.

20. A copy of this order be forwarded to the Labour Court for information.