Jai Pal Singh vs Delhi Development Authority
2009 Latest Caselaw 2666 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) No. 18880/2005

%                 Date of Decision: 16 July, 2009


# JAI PAL SINGH
                                                             ..... PETITIONER
!                 Through: Mr. H.P. Sahu, Advocate.

                                  VERSUS

$ DELHI DEVELOPMENT AUTHORITY
                                                   .....RESPONDENT

^                 Through: Mr. Arun Birbal, 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)

This writ petition filed by the workman (the petitioner herein) is

directed against an award dated 08.10.2004 passed by Mr. P.S. Teji,

Presiding Officer, Industrial Tribunal No. II, Delhi rejecting the claim of the

petitioner for his reinstatement and back wages.

2 Briefly stated the facts of the case relevant for the disposal of this

writ petition are that the petitioner was employed as a Security Guard by

the DDA (the respondent herein) on contract basis for a period of six

months at a fixed salary. His appointment came in place pursuant to an

agreement between the parties dated 31.10.1990. A copy of the said

agreement is at pages 67-68 of the paper book. The period of six

months for which the petitioner was appointed was to come to an end on

30.04.1991. However, before the contract employment of the petitioner

was to come to an end, Delhi Pradesh Rajdhani Mazdoor Union of which

the petitioner was a member filed a writ petition in this Court being

W.P.(C) No. 1305/1991 and in that writ petition this Court vide its order

dated 23.04.1991 directed the DDA to maintain status quo in relation to

employment of the members of the Union. That status quo order dated

23.04.1991 continued till the abovementioned writ petition filed by the

Union was dismissed vide order dated 06.01.1993. The DDA, after the

status quo order was vacated, dispensed with the service of the

petitioner in terms of contract of employment contained in the

agreement dated 31.10.1990 w.e.f. 03.03.1993.

3 On the date the services of the petitioner were dispensed with by

the DDA, an industrial dispute being ID No. 72/1992 was pending before

the Court regarding regularization of contractual employees of the DDA.

Mr. H.P. Sahu learned counsel appearing on behalf of the petitioner has

contended that since an industrial dispute (ID No. 72/1992) was pending

before the court below on the date services of the petitioner were

dispensed with, the respondent was under an obligation to have obtained

permission of the Labour Court under Section 33 (1) of the Industrial

Disputes Act, 1947 and failure to take permission by the DDA vitiate

the termination order of the petitioner. Learned counsel appearing

on behalf of the petitioner has submitted that the impugned award

of the court below suffers from perversity for non-compliance of

Section 33 (1) by the management. Regarding compliance of

Section 33 (1) of the Industrial Disputes Act, 1947, the court below

has observed as follows:-

".....It is established that the workmen were appointed for a period of six months from 1.11.90 meaning thereby which comes to end by 30.4.91 and thereafter they were to discontinue by the lapse of the time given in the agreement. So, thereafter they had no right to continue in the service and they remain in the work as the Hon'ble High Court pleased to pass the order of status quo before the expiry of contractual period. The Hon'ble High Court disposed of the writ petition on 6.1.93 and the status quo order stand was vacated. Thereafter the complainant was discontinued and restored back to the position dated 30.4.91. So even otherwise from no stretch of imagination it can be said that the discontinuity of the workman is not relate back to 30.4.91. Admittedly, by that time there was no dispute raised by the workers. Thus it is established that there was no termination of the complainant during the pendency of industrial dispute bearing No. 72/92 and there is no violation of Section 33 by the respondent as there was contractual employment between the complainant and respondent for the period of six months which expired on 30.4.91. Consequently, both the issues are decided against the complainant."

4 It was held by the Division Bench judgment of this Court in

Delhi Pradesh Rajdhani Mazdoor Union (Regd.) Vs. DDA & Ors. (CWP

No. 1305/1991 decided on 06.01.1993) as under:-

"We find that in the present case the respondent has not in any manner varied the terms of service of the members of the petitioner Union. Therefore, there was no question of seeking any express permission in writing of the authority before which the proceedings were pending because their services got extinguished by flux of time on the expiry of their contract. If the respondents had tried to terminate the services before the contract was over then, of course, they would have got the protection under Section 33. But that is not the case. The question of regularisation is already pending before the Industrial Tribunal. The question of regularisation has not been considered by us because of the pending dispute before the Industrial Tribunal."

5 The argument regarding non-compliance of Section 33 (1)

advanced by the counsel for the petitioner has no merit in view of

above Division Bench judgment of this Court. In my view, the

impugned order does not suffer from any perversity that may call

for an interference by this Court in exercise of its extraordinary

discretionary writ jurisdiction under Article 226 of the Constitution.

This writ petition, therefore, fails and is hereby dismissed leaving the

parties to bear their own costs.

JULY 16, 2009                                S.N.AGGARWAL, J
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