Delhi High Court
Sapna Tours Travels & Leasing Pvt. ... vs Govt. Of Nct Of Delhi & Anr. on 25 March, 2009
Author: V.K.Shali
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) No. 359-60/2006
Date of Decision: 25.3.2009
SAPNA TOURS TRAVELS & LEASING PVT. LTD. ......Petitioner
Through : Proxy counsel for
Mr.Mike Desai, Advocate.
Versus
GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through : Mr.M.L.Vashistha,
Advocate for respondent no.2.
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
V.K. SHALI, J. (Oral)
1. The petitioner has filed the present writ petition challenging
the ex parte award dated 17th April, 2002 passed by the learned
Labour Court - VII in ID No.172/1997 titled as The Workman
Sh. Kishan Ganeshji Vs. The Management of M/s Sapna Tours
and Travels and Leasing Pvt. Ltd.
2. By virtue of the aforesaid award dated 17.4.2002, the
learned Labour Court has held that the termination of the
services of the respondent/workman w.e.f. 07.1.996 by the
petitioner /Management was illegal and unjustified and
accordingly, it directed reinstatement with payment of full back
wages and continuity of services.
3. Briefly stated the facts leading to the filing of the present
writ petition are that the respondent /workman in his statement
of claim had stated that he was working as a Driver with the
petitioner /Management from 1993 and his last drawn wages
were Rs.2,500/- per month. The petitioner /Management was
not providing any statutory benefits to the respondent /workman
as a consequence of the protest raised by the respondent, his
services were terminated on 7th January, 1996 without
complying with the provisions of Section 25(F) of the Industrial
Disputes Act, 1947 (hereinafter referred to as Act). A reference
was made on 28th August, 1997 in the following terms by the
appropriate Government:-
"Whether the services of Sh.
Kishan Ganeshji have been
terminated illegally and/or
unjustifiably by the management,
and if so, to what relief is he
entitled and what directions are
necessary in this respect?"
4. On the basis of the aforesaid reference, the
respondent/workman filed his statement of claim and the
petitioner/management filed his written statement disputing the
claim of the respondent /workman.
5. On the pleadings of the parties, the following two issues
were framed, which reads as under:
"1) Whether there is no relationship of
employer and employee between
the parties?
2) As per terms of reference."
6. The petitioner/Management after filing its written
statement had abstained from appearing as a consequence of
which they were proceeded ex parte on 6th August, 2001. The
respondent /workman examined himself as a WW1 and proved
his affidavit as Ex.WW1/A. the respondent /workman has also
proved documents Ex.WW1/1 to WW1/39 out of which the
document Ex.WW1/19 was specifically relied upon by the
learned Labour Court in order to arrive at a finding that there is
a relationship of the employee and employer between the parties.
This finding was also governed by the fact that there was no
cross examination of the respondent/workman and consequently
his testimony was unrebutted which resulted in passing of the
aforesaid award of reinstatement and payment of full back
wages.
7. The petitioner in the present writ petition has challenged
the ex parte award on the ground that there was violation of
principles of natural justice. It is further stated that they had
engaged one Mr.Amardeep Katyar, Manager (Accounts) who
resigned in 2002. Further they had also shifted their office from
G-3, Arunachal, Barakhamba Road, New Delhi to Janpath in
January 1999 and thereafter to Ansal Bhawan in the year 2002.
Due to shifting of the office, the staff members were leaving the
organization as a consequence of which they could not follow up
the aforesaid case which resulted in passing of an ex parte award
and hence they are praying for setting aside the award.
8. The writ petition was filed on 10th January, 2006 and
thereafter, the order of last two dates show that dates were taken
by the petitioner for the purpose of arguments as well as for
settlement. Today, the learned proxy counsel appearing for the
petitioner has once again requested for adjournment on the
ground that the Executive of the Company has gone to Bangalore
and therefore, instructions could not be received. But even the
counsel who had appeared on the last two dates is not present.
The request for adjournment was disallowed. The proxy counsel
appearing, on being asked to address arguments, expressed his
inability to do so.
9. I have heard the learned counsel for the respondent and
perused the record. I do not find any infirmity in the ex parte
award, which has been passed by the learned Labour Court nor
has the petitioner been able to show any „sufficient cause‟ for
their non-appearance after they have been duly served and they
filed their written statement. Merely by appointing an employee
of the Organization to follow up the case does not absolve the
petitioner /Management of the responsibility of knowing as to
what is happening in case even if the said employee had tendered
his resignation. It is a case where the petitioner /Management
has been grossly negligent and therefore, they must suffer from
the same.
10. On account of these reasons, the award which has been
passed on 17th April, 2002 by the learned Labour Court VII in ID
No.172/1997 is upheld and the plea of the
petitioner/Management with regard to setting aside the same as
they were prevented by „sufficient cause‟ to contest is disallowed.
11. Now the question which arises for consideration is that
whether the respondent /workman even though his termination
has been held to be illegal w.e.f. 7th January, 1996 should be
granted benefit of reinstatement ipso facto and the grant of back
wages. In this regard, the fact that the petitioner in the petition
has stated that the business has been closed in 2003, the
respondent /workman was also employed as a Driver and a
driver will not find it difficult to get an alternative job. Therefore,
without getting into the aforesaid facts, I feel that direction of
reinstatement and the payment of back wages need to be
modified by directing the petitioner to pay one lump sum
compensation in terms of Section 11(A) of the Act.
12. In order to arrive at a quantum of compensation to be paid
to the respondent /workman on account of his illegal
termination, this Court is of the view that in case he would have
continued in service from 07.1.1996, he would have served for
about 13 years. Taking these emoluments to be Rs.2,500/- per
month which he was getting at the time when he was serving as
a Driver seems to be below than the minimum wage and certainly
much below in comparison to the wages which a Driver earns as
on date. Even then for 13 years, the total emoluments would
have been approximately Rs.4,00,000/- if calculated @
Rs.2500/- per month. I feel that 50% of the wages for these 13
years would constitute a just, fair and reasonable compensation
to the respondent in lieu of the reinstatement of the payment of
back wages. The said 50% would be approximately
Rs.2,00,000/-. I, accordingly, direct that the petitioner shall pay
a compensation of Rs.2,00,000/- to the respondent /workman
within four weeks from today on account of his illegal and
unjustified termination. In case the aforesaid compensation is
not paid within four weeks, the same shall carry an interest of
7% per annum till the time of actual payment.
13. With these directions, the award dated 17.4.2002 stands
modified and the writ petition stands disposed of.
V.K. SHALI, J.
MARCH 25, 2009
RN
