Workman Shri Sukhpal Singh vs Management Of M/S Gajra Gears ...
2009 Latest Caselaw 3137 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C.) No. 16880/2006

%                 Date of Decision: 12th August, 2009


# WORKMAN SHRI SUKHPAL SINGH.
                                                  ..... PETITIONER
!                 Through: Ms. Asha Jain Madan, Advocate.

                                VERSUS

$ MANAGEMENT OF M/S GAJRA GEARS LTD.
                                                    .....RESPONDENT

^                 Through: Mr. Jagat Arora, Advocate.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not?YES

3. Whether the judgment should be reported in the Digest?YES

S.N.AGGARWAL, J (ORAL) The workman has filed this writ petition seeking to challenge the

industrial award dated 17.12.2005 in I.D. No. 353/1998 passed by the

Industrial Adjudicator by which he has been declined any relief for

alleged termination of his services by the management of the respondent

w.e.f. 16.07.1994.

2. The petitioner was appointed as a Driver with the respondent

management w.e.f. 02.02.1981. He left the service of the respondent

w.e.f. 17.09.1987. Thereafter, he was re-engaged by the respondent at

an increased salary of Rs. 2,000/- per month w.e.f. 27.10.1987. He was

allegedly terminated by the respondent w.e.f. 15.07.1994. Aggrieved by

his termination, he had raised an industrial dispute which was referred by

the appropriate Government for adjudication to the Labour Court. Before

the Labour Court the management of respondent took a plea that the

petitioner had resigned the service of the respondent voluntarily vide

resignation letter dated 18.08.1987 and that his resignation was

accepted by respondent w.e.f. 17.09.1987. The case of the management

before the Labour Court was that after the petitioner had left the service

of the respondent in September 1987, he was given 3-4 assignments on

monthly basis and was paid for that. As per the management, the

services of the petitioner were not terminated by the respondent as

alleged by him.

3. The Court below accepted the plea of the respondent that the

petitioner was not entitled to any relief as he had resigned the service of

the respondent of his own vide resignation letter dated 18.08.1987. This

finding of the Court below is totally perverse. The case of the petitioner

before the Labour Court was that after he had resigned from the service

of the respondent vide resignation letter dated 18.08.1987, he was re-

engaged by the respondent at an increased salary of Rs. 2,000/- per

month w.e.f. 25.10.1987 and that he continued to work with the

respondent as Driver till his services were terminated w.e.f. 16.07.1994.

The witness of the management, namely MW-1 Shri Nawal Kishore

Kundrai, in his cross-examination before the Labour Court has admitted

that the petitioner continued with assignments with the respondent till

1994. It shall further be significant to mention that the petitioner had

produced the salary slips (Exhibits WW1/3 to WW-1/33) before the Labour

Court for the following period:

April 1989 to December 1989 (except August) January 1990 to December 1990 January 1991 to December 1991 (Except for February, June & October) January 1992 to April 1992.

The copies of these salary slips produced by the petitioner before the

Labour Court are at pages 31-63 of the Paper Book. Not only that, the

petitioner had also produced the specimen attendance slips also, copies

of which are at pages 27-29 of the Paper Book. The admission of the

witness of the respondent that the petitioner continued to work with the

respondent till 1994 coupled with the copies of salary slips and the

sample attendance slips referred above shows that the petitioner on his

re-engagement by the respondent w.e.f. 27.10.1987 had continuously

worked with the respondent till 15.07.1994. It was amply proved by the

petitioner before the Labour Court that he was re-engaged by the

respondent after he had resigned on earlier occasion. In that backdrop,

the earlier resignation tendered by the petitioner had lost its significance

when the Labour Court was called upon to examine the alleged

termination of the petitioner after his re-engagement. A perusal of the

impugned award would show that the Labour Court has passed the said

award relying upon the earlier resignation letter dated 18.08.1987

(Exhibit WW-1/6) tendered by the petitioner prior to his re-engagement.

Hence the findings contained in the impugned award are totally perverse

and cannot be sustained in law. The material on record proves that the

respondent has illegally terminated the services of the petitioner w.e.f.

16.07.1994.

4. The question that now arises for consideration is to what relief the

petitioner is entitled to for illegal termination of his services by the

respondent.

5. Mr. Jagat Arora, learned counsel appearing on behalf of the

respondent, has argued that the petitioner had already reached the age

of superannuation of 58 years in 1994 and, therefore, according to him,

the petitioner could not have even otherwise remained in service of the

respondent after the age of superannuation. The learned counsel

appearing on behalf of the respondent, submits that since the petitioner

had crossed the age of superannuation in 1994, he is neither entitled to

reinstatement nor to any back wages.

6. Per contra, Ms. Asha Jain Madan, learned counsel appearing on

behalf of the petitioner, has contended that the petitioner was 53 years

old in 1994 when his services were illegally terminated by the

respondent. According to the learned counsel appearing on behalf of the

petitioner, the petitioner would have remained in the service of the

respondent for another 5 years had his services been not terminated

illegally by the respondent. She, therefore, submits that the petitioner is

entitled to back wages at least for about 5 years for the period

intervening between the date of illegal termination and the date on which

he would have attained the age of superannuation.

7. On behalf of the management, it is contended that the petitioner

was 58 years old in 1994 whereas on behalf of the petitioner, it is

contended that he was 53 years old in 1994. The age of the petitioner in

1994 becomes a disputed question of fact in view of the above rival

submissions made by the learned counsel for the parties. For granting

relief to the petitioner consequent upon his illegal termination by the

respondent, it will be necessary to determine as to what was his age in

1994 when he was terminated by the respondent. This Court in exercise

of its extraordinary discretionary writ jurisdiction under Article 226 of the

Constitution would not like to go into this disputed question of fact as the

decision on the question of age would require evidence and it will be

appropriate in case parties are asked to produce their evidence regarding

age of the petitioner before the Court below. The case is, therefore, to be

remanded back to the concerned Labour Court/Successor Court for

determining the age of the petitioner on the date of his termination, i.e.,

on 16.07.1994 and also to consider the relief that can be granted to the

workman for illegal termination of his services w.e.f. 16.07.1994.

8. For the foregoing reasons, the impugned award is set aside. The

writ petition is allowed. The case is remanded back to the concerned

Labour Court/Successor Court for determining the age of the petitioner as

on 16.07.1994 and also to consider the relief that may be granted to him

in law on account of illegal termination of his services w.e.f. 16.07.1994.

The parties are directed to appear before the concerned Labour

Court/Successor Court for further directions at 2:00 P.M. on 20.08.2009.

The Court below is directed to decide the matter as expeditiously as

possible preferably within 8 months to be reckoned from 20.08.2009.

A copy of this order be sent to the concerned Labour

Court/Successor Court for information and necessary compliance.

AUGUST 12, 2009                                               S.N.AGGARWAL, J
'bsr'