U.P. Export Corporation Ltd. vs Bhagwan Singh
2009 Latest Caselaw 1770 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) NO. 8658/2005


%                                            Date of Decision : 30.4.2009

U.P. Export Corporation Ltd.                             .... Petitioner

                         Through Mr. Puneet Parihar, Advocate

                                    Versus

Bhagwan Singh                                            .... Respondent

                         Through Ms.K.Prabhakar Rao, Advocate


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                              NO
2.    To be referred to the reporter or not?                    NO
3.    Whether the judgment should be reported in
      the Digest?                                               NO


V. K. SHALI, J. (Oral)

1. The present writ petition has challenged the award dated 15th

March, 2004 passed by learned Labour Court No.VII in ID No.174/1997

in case titled Sh. Bhagwan Singh Vs. M/s Gangotri U.P. Export

Corporation Ltd. By virtue of the aforesaid award the learned Labour

Court held that the petitioner/management had illegally and

unjustifiably terminated the services of the respondent /workman on

21st May, 1996, and accordingly, ordered his reinstatement and

payment of full back wages. The petitioner/management feeling

aggrieved by the aforesaid ex-parte award has challenged the same.

2. I have heard the learned counsel for the petitioner and have also

gone though the record. The learned Labour Court after recording the

evidence of the respondent/workman had given an opportunity to the

petitioner/management to adduce their evidence, however, despite

having been filed their written statement and adduced evidence. On the

contrary, they had been proceeded ex-parte on 27th October, 1998 on

account of their absence as a consequence of which the testimony of the

respondent /workman with regard to the relationship of employer and

employee between the parties is completely unrebutted. The learned

Labour Court had accordingly held that on the basis of the unrebutted

testimony of the respondent/workman the services of the said workman

were terminated on 21st May, 1996 without complying with the

provisions of Section 25-F of the Industrial Disputes Act, 1947, and

accordingly, directed the reinstatement and the payment of full back

wages.

3. In the entire writ petition, there is not an iota of averment as to

why the petitioner/management did not appear either on 27th October,

1998 or even thereafter till the time the award was passed and thus

there is no ground for setting aside ex parte award as sufficient cause is

not proved.

4. The learned counsel for the petitioner has contended that the

order regarding the reinstatement and the payment of full back wages

which has been passed by the learned Labour Court may be modified

on account of the fact that in 1999 a circular was issued by the

Government of U.P. that all the public sector undertakings corporations

to downsize the permanent staff strength as a measure of reducing the

expenses of the Government. It is contended that so far as the

petitioner/corporation is concerned, its staff strength had been fixed at

130 and consequently in order to give effect to the said circular the

petitioner/corporation had to downsize the staff in category of class-IV

of the Corporation.

5. It has been now laid down by the Apex Court in number of

judgments that merely on account of the fact that the termination of a

workman is held to be illegal and unjustified does not ipso facto or

automatically result in passing the order of reinstatement and the

payment of back wages. Reliance in this regard is placed on the

following judgments :

(a) PVK Distillery Ltd. Vs. Mahendra Ram JT 2009 (3) SC 169

(b) Rajasthan Lalit Kala Academay Vs. Radhey Shayam 2008 (10) SCALE 561

6. Keeping in view the aforesaid legal position that the

petitioner/corporation was required to downsize the staff strength,

therefore, this Court feels that in exercise of powers under Section 11A

of the Industrial Disputes Act, 1947 instead of direction the

reinstatement and the payment of bull back wages a onetime

compensation of Rs.2.00 lakh will be directed to be paid to the

respondent/workman. The aforesaid amount is directed to be paid

keeping in view the last drawn wages, length of service which has put in

by the respondent/workman with the petitioner/corporation. Needless

to point that the aforesaid amount shall be in addition to amount which

is to be paid by the petitioner/corporation in compliance to the order

dated 23rd November, 2006 passed under Section 17-B of the Industrial

Disputes Act, 1947. It is also made clear that the aforesaid amount

shall be paid within a period of six weeks from today, failing which

entire amount shall carry an interest @7% from the date of the award

till the actual payment.

7. With these directions, the ex parte award dated 15.3.2004 is

modified to the extent that instead of reinstatement and payment of

back wages, the respondent is paid one time compensation towards the

full and final settlement of his entire claim. With these modifications,

the writ petition is partially allowed.

No order as to costs.

APRIL 30, 2009                                      V.K. SHALI, J.
KP