University Of Delhi vs Sh. Tilak Ram
2009 Latest Caselaw 431 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P. ( C) 2297/2003

                    Judgment delivered on: February 06,2009

University of Delhi                            ...... Petitioner

                            Through: Mr.S.K. Luthra, Advocate with
                            Mr. Pankaj Agarwal, Advocate

                        versus

Sh. Tilak Ram                        ....... Respondents

                            Through: Mr. Rani Chhabra, Advocate
                            with Ms. Madhuri Gupta, Advocate.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                       Yes

2.     To be referred to Reporter or not?                        Yes

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


KAILASH GAMBHIR, J. (Oral)

1. By way of this writ petition filed under Article 226 of

the Constitution of India, the petitioner seeks to challenge the

impugned award dated 01.08.2002 passed by Sh. T.R. Naval,

Presiding Officer, Labour Court No.III, Karkardooma Courts,

Delhi.

2. Brief facts of the case relevant for deciding the

present petition are as under:-

The respondent workman was working with the

petitioner Management as a Peon w.e.f. 18.04.1995 as daily

wager. He joined Faculty of Law, University of Delhi. His

counterparts who were regular employees were being paid in

the pay scale of Rs.750-940 with usual allowance. The

management terminated his services w.e.f. 11.09.1997 without

assigning any valid reason illegally and unjustifiably. He was

employed against regular nature of job and against vacant post

of Peon and was treated as casual daily rated workman. His

juniors were retained in service and he was thrown out of the

job. The management did not display the seniority list at the

time of termination of his services. Neither notice was given to

him nor any notice pay was offered or paid to him. Like wise,

neither service compensation was offered nor paid to him. He

had acquired the status of permanent employee after completing

90 days continuous service with the management. Even after his

completing 240 days continuous service with the management,

he was not regularized in the employment. He has been without

employment since termination of his services. A demand notice

dated 3.8.1999 was sent to the Dean & Head of Deptt. of Faculty

of Law and he did not receive any reply. Thereafter the

respondent/workman approached the Labour Court for passing

an award for his reinstatement in service with full back wages.

Accrdingly, a reference was made to the Labour Court & Labour

Court made an award dated 1.8.2002, impugned herein.

3. Mr. S.K. Luthra, Counsel appearing for the petitioner

submits that the services of respondent/workman were engaged

for the work of Peon as a daily wager @ Rs. 62.80 per day

particularly for a fixed period of term. Thereafter, the

respondent/workman was engaged on daily wages basis

occasionally from time to time for fixed periods depending upon

the exigency of work. Counsel further states that the services

of the respondent/workman were never continuous in nature and

even otherwise they were never satisfactory as per the required

standard. Counsel further submits that the question of

termination of respondent never arose as he was appointed for a

fixed period. Counsel thus states that the respondent is not

entitled to reinstatement and at the most he can be suitably

compensated. Counsel for the petitioner has placed reliance on

the judgment of this court in LPA No. 179/2007 dated

09.09.2008 Sushil kumar Vs. University of Delhi wherein

the Division Bench had decided that the reinstatement need not

invariably be the relief to be granted and that in lieu thereof

compensation can be awarded and in the given facts of the case

the petitioner can suitably compensate the workman. Counsel

for the petitioner has placed reliance on the letter of

appointment dated 8.11.1996 to support his argument that the

appointment of the respondent/workman along with two other

such employees was for a period of six months i.e. till 2.4.1996.

4. Opposing the present writ petition , Ms. Rani

Chhabra, the counsel for the respondent states that the

respondent was in continuous employment with the petitioner

university after having completed 240 days of continuous work

preceding the date of his termination. Counsel further submits

that for no fault of the respondent his services were terminated

without adhering to the provision of Section 25 FFF of the

Industrial Disputes Act. Counsel thus states that the award

passéd by the Tribunal is neither illegal nor perverse

warranting any interference by this court.

5. I have heard counsel for the parties and perused the

record.

6. Indisputably, the respondent remained in employment

with the petitioner till August, 1997 whereafter he was not

assigned any duties. It is also not in dispute that the provisions

of Section 25 FFF of the I.D. Act were not adhered to by the

petitioner before dispensing with the services of the respondent.

Order under Section 17-B of the Industrial Disputes Act has

already been passed by this court taking a prima facie view of

the matter that the respondent could not secure any gainful

employment during the pendency of the present petition. It is

not a case set up by the petitioner that the respondent had

worked merely for some short period i.e. below 240 days and

his job came to an end before the expiry of such mandatory

period of 240 days. The Tribunal after taking into consideration

the evidence adduced by the parties came to the conclusion that

the petitioner management failed to prove the issue No.1 to

prove that the respondent/workman was appointed only for a

fixed period due to exigencies of the work. With regard to

Issue No.2 also the Tribunal affirmed that the petitioner did not

comply with the mandatory requirement of Section 25 FFF of the

Industrial Disputes Act and accordingly the termination of the

respondent was held to be illegal. It was not the case of the

petitioner that there was any allegation of mis-conduct of the

respondent on record which alone could have disentitled the

respondent for reinstatement.

7. In the light of the above position, I do not find any

illegality or perversity in the impugned award directing

reinstatement of the respondent/workman with 50% back

wages. The judgment of the Division Bench relied upon by the

petitioner is not applicable in the facts of the present case.

8. It is a settled legal position that in given facts of the

case the tribunal can always direct grant of compensation alone

but there is no such settled or strait jacket principle that in all

cases only reinstatement is to be directed with back wages or it

is only back wages or only compensation.

9. The decision of Federal Court in the case of Western

India Automobiles Association v. Industrial Tribunal

reported in AIR 1949 FC 111 settled the legal position which

still hold good that an Industrial Tribunal has jurisdiction to

direct reinstatement and in a case of wrongful dismissal re-

instatement is the normal rule. However, there are exceptions to

this rule and these exceptions have been recognized in various

judgments. Re-instatements has not been considered desirable

in cases where there have been strained relationships between

employer and employee or there is lack of trust or loss of

confidence. Reinstatement is also denied when an employee had

been found to be guilty of subversive activity or acting

prejudicial to the interest of the Industry. Courts have also

denied reinstatement with back wages in cases where long time

has lapsed. Reference in this regard may be made to the

judgment of the Supreme Court in cases of Rattan Singh v..

Union of India, (1997) 11 SCC 396; Rolston John v. Central

Government Industrial Tribunal-cum-Labour Court, 1995

(Supp) 4 SCC 549: (1994 Lab IC 973); Gujarat State Road

Transport Corporation v. Mulu Amra, 1995 Supp (4) SCC

548: AIR 1994 SC 112 and MP Shikshak Sangh v. State of

MP, 1995 Supp (1) SCC 556. Since none of the exceptions are

attracted herein, thus, the normal rule of reinstatement should

not be disturbed.

10 . In any event of the matter I do not find that the order

of the Labour Court directing reinstatement in the present case

is arbitrary or perverse.

Dismissed.

February 06, 2009                   KAILASH GAMBHIR, J.
pkv