M/S C.D.Security Servies Network ... vs The Labour Commissioner & Anr.
2009 Latest Caselaw 1788 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No.13062/2006

                                  Date of Decision : 01.05.2009

M/S C.D.SECURITY SERVIES NETWORK LTD. ......Petitioner
                           Through : Mr.Mayank Kumar,
                                     Advocate.

                              Versus


THE LABOUR COMMISSIONER & ANR.       ...... Respondents
                        Through : Mr.Rama Shankar,
                                 Advocate.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers 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

V.K. SHALI, J. (Oral)

1. The petitioner in the instant writ petition has challenged

the award dated 11.8.2005 passed by the learned Labour Court -

IX in ID No.31/1999 in case titled Sh.Uma Shankar Vs. M/s

C.D.S.S. Network Ltd.

2. By the impugned award, the learned Labour Court has held

the termination of services of the respondent/workman on

22.6.1998 as illegal and unjustified and accordingly it is directed

for payment of 25% of back wages from the date of his

termination till he is reinstated. The salary of the petitioner has

been stated to be Rs.1,937/- per month at the time of

termination.

3. I have heard the learned counsel for the parties and

perused the record. The main contention of the learned counsel

is that the petitioner is only a Contractor and not the principal

employer. The petitioner only used to supply the Security

Guards to the principal employer and therefore, the petitioner

does not come within the jurisdiction of the learned Labour

Court.

4. This plea is bereft of any merit on account of the fact that

this is not the case of the petitioner either in the writ petition or

in the Labour Court, even during the course of oral submission

raised an iota of averment made by the petitioner anywhere till

passing of the award that the petitioner happens to be only a

Contractor. Therefore, this argument, is without any merit and

is accordingly, dismissed.

5. The second submission made by the learned counsel for

the petitioner is that the respondent /workman had

superannuated in the year 2003 and ex parte award was passed

against the petitioner on 11.8.2005.

6. So far as the question of superannuation of the respondent

/workman is concerned, it has not been established before the

learned Labour Court either by way of pleadings or by way of

evidence that the respondent /workman has superannuated in

the year 2003. Therefore, this plea of the petitioner seems to be

totally an afterthought. It has been taken with a view to avoid

the payment of monetary benefit to the petitioner. As regards the

question of the award being ex parte, the petitioner admittedly

had chosen to file his written statement and adduce evidence

also before the learned Labour Court. If the petitioner after

adducing the evidence does not appear before the learned Labour

Court then it must show that it was prevented by 'sufficient

cause' from appearing before the learned Labour Court which

may warrant setting aside of the award against the petitioner.

7. In the instant case, there is no averment as to what facts

and circumstances prevented the petitioner from appearing

before the learned Labour Court. Therefore, if the petitioner has

absented after filing of the written statement and after adducing

of its evidence, then it has done so at its own peril. The award

though passed in the absence of the petitioner but the same

cannot be set aside on being termed as ex parte award. Even

otherwise the learned Labour Court has considered not only the

written statement of the petitioner but also the evidence adduced

by them. Therefore, this plea of the petitioner does not have any

merit.

8. Now the question which arises for consideration is that the

learned Labour Court has granted benefit of payment of 25% of

the back wages from the date of termination which happens to be

22.6.98 till the time he is reinstated.

9. The contention of the learned counsel for the petitioner is

that the respondent/workman had superannuated is not borne

from the record nor any evidence has been adduced in this

regard before this Court. In the absence of the same, this plea

that the petitioner has superannuated will also not be a ground

for denying him the monetary benefits accruing him in terms of

the award. There is another aspect to the matter and that is that

the respondent/workman was admittedly working as a 'Security

Guard' with the petitioner and had just put in two years of

service between the period from 04.4.1996 to 22.6.1998, the

alleged date of termination.

10. The respondent/workman being a Security Guard has also

been observed to have not been unemployed during the pendency

of the reference before the learned Labour Court and accordingly,

on the basis of the same his payment of back wages has been

regulated up to 25%.

11. Merely on account of the fact that termination of services of

the petitioner has been held to be illegal and unjustified, that

does not unnecessarily result in passing of order of

reinstatement in favour of the petitioner and the payment of back

wages. Reliance in this regard can be placed on catena of cases

passed by the Apex Court,

P.V.K.Distillery Ltd. Vs. Mahendra Ram JT 2009(3) SC 169, Uttar Pradesh State Electricity Board Vs. Laxmi Kant Gupta 2008 (13) SCALE 39 and Rajasthan Lalit Kala Academy Vs. Radhey Shyam 2008(10) SCALE

12. Keeping in view the aforesaid broad parameters, I feel that

this is a fit case where in spite of directing payment of back

wages to the tune of 25% and reinstatement, it deserves to be

modified and the petitioner may be directed to pay one time lump

sum compensation to the respondent /workman.

13. The question would arise is how much compensation

should be payable to the respondent /workman. For this

purpose, the factors like service which has been put in by the

respondent/workman with the petitioner, the nature of duty

which he was doing and the capacity of the petitioner to pay will

have to be seen.

14. The respondent/workman had just put in two years of

service as a Security Guard. It is observed by the learned Labour

Court that the respondent/workman would have definitely been

working during the pendency of the reference as a Security

Guard to sustain himself. The nature of job which was being

done by the respondent /workman is obviously such where there

is no dearth of jobs and he would have picked up one.

15. Therefore, keeping in view the quantum of wages which was

directed to be paid by him, if we calculate the wages @ 25%, the

petitioner would have been entitled to a sum of Rs.46,000/- from

the date of his termination till the date of the award. Even from

the date of the award, the petitioner would have been entitled to

25% of the wages till date which would come upto Rs.22,000/-.

Adding up both these amounts, the total amount would be

approximately Rs.66,000/-.

16. I feel that an amount of Rs.66,000/-, if paid to the

respondent /workman, should be a sufficient compensation in

lieu of the reinstatement and payment of back wages to the

respondent /workman. Accordingly, I direct the petitioner to

pay any lump sum amount of Rs.66,000/- to the respondent

/workman towards full and final settlement in lieu of

reinstatement of the payment of back wages as one time

compensation to the respondent /workman.

17. The petitioner is purported to have deposited a sum of

Rs.22,000/- which is stated to be kept in a fixed deposit. Apart

from that he had also got a sum of Rs.8,000/- as litigation

expenses. The aforesaid amount of Rs.22,000/- along with

interest shall be released to the respondent/workman and on

that score an amount of Rs.26,000/- shall be deducted from the

amount of Rs.66,000/- and the balance amount shall be paid to

the respondent/workman within four weeks from today, failing

which the balance amount shall carry an interest @ 7% per

annum from the date of the award till the date of realization to

the respondent/workman.

18. With the aforesaid directions, the impugned award dated

11.8.2005 stands modified with regard to the direction of

reinstatement and the payment of back wages and the same is

substituted by one time payment of Rs.66,000/-. Accordingly,

the writ petition is disposed of with these directions.

No order as to costs.

V.K. SHALI, J.

MAY 01, 2009 RN