Sh.Mahavir Singh vs M/S Narang International Hotel ...
2009 Latest Caselaw 489 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) NO.16580/2006

%                                        Reserved on : 27.01.2009
                                         Date of Decision: 11.02.2009

SH.MAHAVIR SINGH                                       .... Petitioner

                       Through Ms.Amita Gupta, Advocate.

                                Versus

M/S NARANG INTERNATIONAL HOTEL (P) LTD.                .... Respondent

                       Through Mr.Anil Kumar, 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?                     Yes
3.    Whether the judgment should be reported in
      the Digest?                                                Yes


                         JUDGMENT

V.K.SHALI, J.

*

1. The petitioner in the instant writ petition has challenged the part

of the award dated 18th August, 2006 passed by the learned Labour

Court No.IX, Karkardooma Courts, Delhi in ID No.1865/1994 titled as

Workman Sh.Mahavir Singh Vs. M/s Narang International Hotel (P) Ltd.

2. By virtue of the aforesaid award, though the learned Labour

Court has arrived at a finding to the effect that the workman had

rendered more than three years of service with the

respondent/Management and that the service contract Ex.WW1/M1 to

MW1/3 are sham documents and his termination of service with effect

from 24th August, 1993 was illegal and unjustified and therefore, he

was entitled to protection under Section 25 (F) of the Industrial

Disputes Act, 1947 (hereinafter referred to as „Act‟) yet the learned

Labour Court did not grant him the benefit of either Section 25(F) or the

reinstatement back into the service on the ground that the petitioner

had of his own saying admitted that after termination of his services by

the respondent/Management, he had taken up the employment with

M/s Shanti Sports Club and the same did not entitle him to any relief.

3. The petitioner in the writ petition has averred that though there

was a clear cut finding in his favour to the effect that he was employed

with the respondent/Management on 2nd April, 1990 as a Security

Guard on a monthly salary of Rs.1,350/- but on account of unfair

labour practice, he was made to sign agreements, which are

Ex.WW1/M1 and WW1/M3, which were in the nature of service

contract to give an impression as if the petitioner was not an employee

of the respondent/Management and there existed a contract of service

qua the petitioner. It was alleged by the petitioner that his services were

illegally and unjustifiably terminated w.e.f. 24th August, 1993. This

resulted in espousal of his cause of illegal termination by the Hotel

Mazdoor Union which resulted in a reference being made by the State

Government in the following terms:

"Whether the services of Sh. Mahavir Singh have been terminated by the management illegally and/or unjustifiably if so, to what relief is he entitled and what directions are necessary in this respect?"

Thereafter, the petitioner filed his statement of claim giving the

facts which have been already stated hereinabove.

4. So far as the Management is concerned, it filed its written

statement contesting the claim and taking the plea that he was a

contractual employee. This stand has been reiterated even in the

counter affidavit before this Court also that the petitioner is not entitled

to benefit of Section 25 (F) of the Act as the petitioner of his own

independent volition after the alleged illegal termination had taken up

the employment with M/s Shanti Sports Club which was established by

the respondents through their witness MW-2. The respondents also

disputed the finding of the learned Labour Court to the effect that

service agreements WW1/M1 and WW1/M3 were sham documents but

the said question cannot be gone into now in the writ petition filed by

the present petitioner, as there is no cross challenge to the said finding

by the respondent/Management by way of an independent writ.

Therefore, only a short question which survives for consideration of this

Court is whether the learned Labour Court was justified in denying the

benefit of reinstatement despite the fact that the learned Labour Court

came to a finding that the services of the petitioner were illegally and

unjustifiably terminated or alternatively give him the benefit of Section

25(F) of the Act which entitled him to the retrenchment compensation

which is equivalent to 15 days salary for each completed year of service.

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

record. So far as the finding of the learned Labour Court to the effect

that the petitioner had joined the service on 2nd April, 1990 and his

termination on 24.8.1993 which was held to be illegal and unjustified is

concerned, there is no dispute. Same is the case with regard to the

finding of the learned labour Court with regard to the three service

agreements Ex.WW1/M1 to WW1/M3 which are couched in such a

manner so as to give an impression as if the petitioner was an

independent contractor and the contract was of service which was in

the nature of investigation and reporting to the

respondent/Management.

6. The learned Labour Court has come to a definite finding that

these agreements were actually sham documents which the petitioner

was being made to execute on account of unfair trade practice being

indulged in by the respondent/Management. So far as these issues

which have been adjudicated between the parties are concerned, they

have attained finality because neither the petitioner is challenging the

same in the instant writ petition nor there is any counter challenge by

way of an independent writ petition by the respondent/Management to

the same. Therefore, the only question which survives is whether the

learned Labour Court was right in denying the petitioner the

consequential benefits which would have accrued to him on account of

holding of the learned Labour Court regarding his termination being

illegal and unjustified.

7. It has come in evidence that the petitioner after termination of his

services in the month of August, 1993 had taken up employment with

M/s Shanti Sports Club which is also stated by him to have been given

up. This factum was admitted by the petitioner in the cross

examination of MW2, a witness adduced by the

respondent/Management. It is also admitted by the petitioner before

the learned Labour Court that at the time when his statement was

being recorded, he is purported to have said that he does not intend to

work anywhere. These were the two main reasons for the learned

Labour Court not to order the reinstatement of the petitioner with or

without back wages.

8. Merely on account of the fact that the petitioner after his services

were terminated had taken employment with M/s Shanti Sports Club,

though the exact date of taking such employment has not been

established, in my view would not disentitle the petitioner of the relief

of reinstatement or such other relief which the Ld. Labour Court deems

fit because the learned Labour Court has come to a definite finding that

the termination of services of the petitioner was illegal and unjustified.

Therefore, this consequential relief ought to have come naturally in

routine course. The factum of the petitioner having taken up an

employment with M/s Shanti Sports Club, even though we assume it to

be from 25th August, 1993 and till 2000 that would at best disentitle the

petitioner to claim the entire back wages or the percentage thereof

which the learned Labour Court in its wisdom and discretion could

have thought fit to grant for the said period. But merely to assume that

the petitioner had taken employment with M/s Shanti Sports Club

would not disentitle the petitioner from claiming of reinstatement or the

other consequential relief was not a valid reason to deny him the said

benefit. It is a common knowledge that even if the services of a

workman which are illegally terminated, he will find for his ways and

try to look for some employment howsoever under-employed it may be

because not only he has to survive himself but if he is married, he has

to ensure that his family also survives. Therefore, because of the

instinct of self preservation, the petitioner seems to have taken the

employment. But that would though disentitle him to the benefit of

reinstatement or back wages but under Section 11(A) the Labour Court

was not prepared to give him the benefit of reinstatement. The

petitioner as a matter of right was entitled to the retrenchment

compensation in terms of Section 25 (F) of the Act which has also not

been granted to him or alternatively a lump sum compensation could

have been granted because he had expressed his desire not to work any

further before the Labour Court.

9. I am of the considered opinion that the learned Labour Court has

fallen into a grave error by denying the petitioner the benefit of holding

of the termination order to be illegal and unjustifiable.

10. It is too late in the day now to grant him reinstatement after a

lapse of almost 15 years from the date of his illegal termination and

especially in the light of the fact that he has also stated before the

learned Labour Court that after 2000, he is not inclined to work,

therefore, this is a fit case where he ought to be granted compensation

under Section 11(A) of the Act. The retrenchment compensation under

Section 25(F) of the Act is not being considered and as an alternate

possible benefit to the petitioner on account of the fact that admittedly

the petitioner has stated that his salary at the time of his work was

Rs.1,350/- and if calculated the retrenchment compensation that would

be 15 days salary for each completed year of service and as the

petitioner had put in just 3 years of service it would come only a

pittance.

11. For the forgoing reasons, I feel that a compensation of

Rs.30,000/- under Section 11(A) of the Act would be just and fair to the

petitioner on account of his illegal and unjustifiable termination, which

will meet the ends of justice in the instant case. In addition to this, the

petitioner shall also be entitled to costs of Rs.10,000/-.

12. With these observations, the present writ petition is allowed.

February 11, 2009                                            V.K.SHALI, J.
RN/RS