Mata Sundri College For Women vs Sh. Vijay Pal
2009 Latest Caselaw 657 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) NO. 11009/2006

%                                            Reserved On : 14.01.2009
                                          Date of Decision : 26.02.2009

MATA SUNDRI COLLEGE FOR WOMEN                           .... Petitioner

                       Through Mr. Sudhir Nandrajog, Advocate

                                 Versus

SH. VIJAY PAL                                           .... Respondent

                       Through Mr. Mahipal Singh, Advocate


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


V. K. SHALI, J.

*

1. This is a writ petition filed by the petitioner/college against the

award dated 11th July, 2005 passed by the Presiding Officer, Labour

Court No. 1, Karkardooma, Delhi in case titled Mata Sundari College

for Women & Ors. Vs. Its workman Vijay Pal. By virtue of the

impugned award dated 11th July, 2005 the Ld. Labour Court has

directed the reinstatement of the respondent/workman with the

petitioner/college with full back wages as his termination w.e.f. 26th

March, 2002 was held to be illegal and unjustified.

2. Briefly stated the facts leading to the filing of the present writ

petition are that the Secretary (Labour), Government of NCT of Delhi

made a reference under Section 10(1) (C) and Section 12 (5) of the

Industrial Disputes Act, 1947 to the Ld. Labour Court in the following

terms:

"Whether the services of Sh. Vijay Pal, s/o Sh. Sunder Singh, R/o VPO Bamnoli, Delhi has been terminated illegally and unjustified by the petitioner/college and if so, to what sum of money as monitory relief along with the consequential benefit in terms of existing laws/Government notification and to what other relief is he entitled and what directions are necessary in this respect?"

3. On the basis of the aforesaid reference the respondent/workman

filed a statement of claim alleging that he was appointed as a Sports

Attendant by the petitioner/college on 14th July, 2000 on a monthly

salary of Rs. 2700/-. He alleged that he worked continuously without

any interruption till his alleged illegal termination. It is alleged that the

respondent/workman was promoted to the post of Office Attendant vide

letter dated 24th/31st January, 2001 in the pay scale of Rs. 2550-55-

2660-3200 along with usual allowances as permissible under Delhi

University Rules. The respondent/workman continued to work with the

petitioner/college till March, 2002. On 26th March, 2002 he received a

letter to be effective from 25th March, 2002 dispensing with his services.

The respondent/workman alleged that he worked with the

petitioner/college till 26th March, 2002 and from 27th March, 2002 he

was not permitted to resume his duties.

4. It was alleged that on the basis of this, the respondent having

worked for more than 240 days in a calendar year and dispensing with

the services without complying with the provisions of Section 25 (F), (G)

and (H) of the Industrial Disputes Act, 1947 was unsustainable as he

was neither paid retrenchment compensation nor he was taken back

into service. He further stated that he has continued to remain

unemployed, and therefore, had made a prayer for reinstatement with

full back wages.

5. The petitioner/college contested the claim of the

respondent/workman and contended that the appointment of the

respondent/workman was purely on „temporary‟ basis, as Office

Attendant. It was alleged that he was a contractual employee for a

limited period as Sports Attendant due to the exigency of work, and

therefore, discontinuation of his services did not carry with it any

obligation to pay compensation as envisaged under Section 25(F) of the

Industrial Disputes Act, 1947. For the purpose of elaborating that the

appointment of the respondent/workman as Office Attendant was

purely temporary and on account of exigency of work, he was kept in

service by the petitioner/college from 09.02.1999 to 09.03.1999,

11.03.1999 to 10.04.1999, 12.04.1999 to 11.05.1999, 01.02.2001 to

30.04.2001, 02.05.2001 to 01.07.2001, 03.07.2001 to 21.09.2001,

24.09.2001 to 23.11.2001, 24.11.2001 to 23.12.2001 and 27.12.2001

to 25.03.2003. Further, it was contended by the petitioner/college that

on account of having dispensed with his services and the fact that the

respondent/workman was purely contractual or at best temporary

employee under Section 25 (F) and (G) of the Industrial Disputes Act,

1947 would not be attracted, and therefore, the order of the Ld. Labour

Court directing reinstatement with 100% back wages was totally

unsustainable in the eyes of law.

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

record. I have also carefully considered the submissions made by the

petitioner/college. The main contention of Mr. S. Nandrajog, learned

counsel for the petitioner/college is that the appointment of the

respondent/workman was purely temporary and contractual in nature,

and therefore, he could not claim either regularization much less could

be Ld. Labour Court direct the reinstatement of the same with full back

wages. It was also urged that under Section 25 (F) of the Industrial

Disputes Act, 1947 specifically excludes the persons whose services are

terminated on account of non-renewal of the contract by the employer

after the expiry of their contractual period. For this purpose, the

learned counsel drew my attention to Section 2 (oo) (bb) of the

Industrial Disputes Act, 1947 and also referred to the authorities of the

Hon‟ble Supreme Court in order to substantiate his submissions.

These authorities are M.P. housing Board & Anr. Vs. Manoj

Shrivastava (2006) 2 SCC 702, Haryana State Agricultural

Marketing Board Vs. Subhash Chand & Anr. (2006) 2 SCC 794, M.P.

State Agro Industries Development Corporation Ltd. & Anr. Vs. S.

C. Pandey (2006) 2 SCC 716, Delhi Transport Corporation Vs.

Presiding Officer & Anr. 82(1999) DLT 648 (DB) and Madhya

Pradesh Administration Vs. Tribhuban (2007) 9 SCC 748.

7. I have gone through these authorities. The question to be

considered is as to whether the respondent/workman could be said to

be a contractual employee or not. Coming to the facts of the present

case, this is not disputed that the respondent/workman had joined

duties on 17th July, 2000. As against this, the respondent nos. 1 and 2

had categorically made an admission in their written statement to the

statement of claim that the respondent/workman, in fact, has been

working from 9th February, 1999 and not from the date given by the

petitioner/college. On the contrary, it has been stated by the

petitioner/college that the respondent/workman had been continuously

working on temporary basis w.e.f. 9th February, 1999. If the

appointment of the respondent/workman is taken to be w.e.f. 9th

February, 1999, he has admittedly continued up to 25th March, 2002

which makes it more than 240 days in a year and if at all any break of

service was there, it has been given only as an artificial break by the

petitioner/college with a view to evade its liability under the laws

governing such appointment. The learned counsel for the petitioner has

placed on record three letters dated 14th July, 2000, 24th January, 2001

and 22nd March, 2002. In the first two letter all that has been stated is

that the petitioner has been appointed purely on ad hoc basis while as

none of these two letters specify that the appointment of the

respondent/workman was contractual in nature which would come to

an end on account of expiry of the contract period or by efflux of time.

On the contrary, in the letter dated 22nd March, 2002, it has been

stated that the tenure of the respondent/workman is temporary in

nature will come to an end as Office Attendant w.e.f. 25th March, 2002.

Therefore, in my considered opinion, there was no evidence on record

before the Ld. Labour Court or even before this Court to hold that the

respondent/workman was appointed as a contractual employee. The

only evidence which has come on record is that he was being appointed

on purely ad hoc basis as a stop gap arrangement or a temporary

employee for different purpose even though artificial breaks were being

given to him for the purpose of camouflage and evade the provisions of

the Industrial Disputes Act, 1947. For these reasons, I am of the view

that the respondent/workman was not a contractual employee, but was

a temporary employee who had admittedly worked for 240 days in a

year as has been rightly held so by the learned Tribunal below.

8. The contention of the learned counsel for the petitioner/college

that under Section 2 (oo) (bb) of the Industrial Disputes Act, 1947 does

not make the provisions of retrenchment applicable on such contractual

employees also in my view is bereft of any merit. It would be pertinent

here to reproduce Section 2 (oo) (bb) of the Industrial Disputes Act,

1947 which reads as under:

"2(oo). "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include -

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such

contract being terminated under a stipulation in that behalf contained therein."

9. A perusal of the aforesaid provisions would clearly show that

where the termination of the services of a workman is on account of

non-renewal of his contractual employment between the employer and

the workman concerned or on account of contract having come to an

end by a efflux time in such a case the provisions of retrenchment

would not applicable, and accordingly, the employee will not be entitled

to retrenchment compensation.

10. However, as has been stated, hereinabove, that since the

respondent/workman was not a contractual employee, therefore, the

said provision would not be applicable to him. On the contrary, the

respondent/workman is shown to have worked for 240 days

continuously in a year, and therefore, the provisions of Section 25(F) of

the Industrial Disputes Act, 1947 have been observed more in breach

that in compliance. I am, accordingly, of the opinion that the Ld.

Labour Court has rightly held to be the termination of the

respondent/workman to be illegal and unjustified.

11. The learned counsel for the petitioner has drawn my attention to

the various authorities details of which stated, hereinabove. I have

gone through the authorities cited by the learned counsel for the

petitioner/college, however, I feel none of the authorities which has

been cited by the learned counsel for the petitioner would be applicable

to the facts of the present case.

12. In Manoj Shrivastava's case (supra), the Hon‟ble Supreme Court

was concerned with the regularization of a daily wager who was

appointed as Sub-Engineer (Civil) wherein the learned Court has held

that where a person is appointed as a daily wager or as a casual labour

in a post which is not a sanctioned post and his appointment has also

not been made in accordance with the recruitment rules in such a case

he could not claim regularization because his initial appointment itself

is in contravention of not following the statutory provision of his

appointment. Moreover, there is no post of the Executive Engineer to

which he would have been regularized.

13. Similarly, in Subhash Chand's case (supra) also it has been

observed by the Hon‟ble Supreme Court that if the nature of

termination of service does not come within the purview of Section

25(G) of the Industrial Disputes Act, 1947 on account of the person

being appointed on a seasonal contract then he cannot get the benefit of

either regularization or Section 25(T) of the Industrial Disputes Act,

1947. In such a case, it has been observed that the termination of

services of such engineer is on account of non renewal of their contract.

14. As against this, it has been held in such a case that while dealing

with the welfare legislation specially labour law the Court will be well

within its power to lift veil in order to find the real purpose and intent of

the employer in appointing the workman. In the instant case, not even

a single document has been placed on record by the petitioner/college

to the effect that the real intent purpose of respondent no.2/workman

was purely temporary in nature. On the contrary, the first letter of

appointment on 14th July, 2000 shows that he was appointed no doubt,

on temporary basis. However, thereafter his services seemed to have

been continued from time to time. Therefore, this clearly indicates that

this was not a bona fide exercise of the power by the petitioner/college

to recruit the respondent no. 2/workman which is subsequently sought

to camouflaged as a temporary appointment. Therefore, I do not find

any infirmity or illegality in the findings of the Ld. Labour Court in

declaring that the provisions under Section 2 (oo) (bb) of the Industrial

Disputes Act, 1947 are not applicable so far as the services of the

respondent/workman are concerned. So far as the other authorities are

concerned, they are also not applicable to the facts of the case because

the petitioner was not a contractual employee. He was an employee

who had worked for 240 days and who was being given artificial breaks

to circumvent the law.

15. Now, the only question which arises for consideration is, as to

whether, the respondent/workman is entitled to the back wages or not.

In this regard, the provisions of Section 11(A) of the Industrial Disputes

Act, 1947 specifically empowers the Ld. Labour Court to the effect that

in a given case if he feels that the reinstatement would not be conducive

to the industry or the industrial relation between the employer and the

employee where the respondent/workman is working, in such a case,

the tribunal was well within its rights to grant compensation rather

than compel the petitioner who has breached the faith qua the

respondent/workman to grant him one time amount by way of

permanent settlement to the respondent/workman.

16. There are decisions of the Supreme Court, namely, Rolston John

Vs. Central Government Industrial Tribunal-cum-Labour Court &

Ors., 1995 Supp (4) SCC 548, and Rattan Singh Vs. Union of India

& Anr., 1997 (11) SCC 396, wherein reinstatement was declined to the

workman who was instead awarded compensation in lieu thereof.

Similarly in Talwara Cooperative Credit Society Ltd. Vs. Sushil

Kumar 2008 (9) SCC 486, the Supreme Court more recently held that

relief of reinstatement is a trite and is not automatic nor is the grant of

back wages automatic. The Courts while exercising their power under

Section 11 of the Industrial Disputes Act are required to strike a

balance in a situation of this nature.

17. In the light of the aforesaid pronouncement, I am of the view that,

no doubt, the petitioner has been unable to establish that the

respondent/workman was covered by the provisions of Section 2 (oo)

(bb) of the Industrial Disputes Act, 1947, and therefore, the order of

reinstatement and the back wages cannot be set aside. On the

contrary, I feel that a Ld. Labour Court was perfectly justified and legal

in concluding that the aforesaid provision of Section 2 (oo) (bb) of the

Industrial Disputes Act, 1947 did not apply to the facts of the present

case as the respondent/workman was not a contractual employee. The

appointment to the post of temporary workman was extended from time

to time though there was a change of designation also from Sports

Attendant to Office Attendant and grant of regular scale which showed

that he was not an contract or ad-hoc or even temporary.

18. I feel that as in the present circumstances where the respondent

no. 3/University has not approved the permanent appointment of the

respondent/workman, it would have been proper for the Ld. Labour

Court to grant damage/compensation to the respondent/workman

instead of his reinstatement. In the light of the aforesaid facts and

circumstances of the case, I am of the considered opinion that it would

be in the interest of justice in case instead of reinstatement of the

respondent/workman with full back wages from 2000, a compensation

of Rs.1.00 lakh be granted which in my view will be adequate and just

to be given to the respondent/workman on account of having

terminated his services illegally. This amount has been fixed keeping

in view the monthly salary which the respondent was earning and the

number of years of service which he had put in with the

petitioner/management. For these reasons, the award dated 11th July,

2005 is modified only to the extent that instead of directing the

reinstatement with 50% back wages to the respondent/workman. He

shall be paid a sum of Rs.1.00 lakh towards the full and final

settlement of his entire claim under Section 11 (A) of the Industrial

Disputes Act, 1947.

No order as to costs.

February 26th, 2009                                                V.K. SHALI, J.
KP