U.P. Export Corporation Ltd. vs Vinod Kumar Mishra
2009 Latest Caselaw 1945 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) NO. 8904/2005

%
                                           Date of Decision : 08.05.2009

U.P. Export Corporation Ltd.                           .... Petitioner

                         Through Mr. Puneet Parihar, Advocate

                                  Versus

Vinod Kumar Mishra                                     .... Respondent

                         Through Ms. K. Prabhakar Rao, 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?                    NO
3.    Whether the judgment should be reported in
      the Digest?                                               NO


V. K. SHALI, J. (Oral)

1. The present writ petition has challenged the award dated 15th

March, 2004 passed by learned Labour Court No.VII in ID No.

173/1997 in case titled Vinod Kumar Mishra Vs. M/s Gangotri U.P.

Export Corporation Ltd. By virtue of the aforesaid award the learned

Labour Court held that the petitioner/management had illegally and

unjustifiably terminated the services of the respondent/workman on

21st May, 1996, and accordingly, ordered his reinstatement and

payment of full back wages. The petitioner/management feeling

aggrieved by the award has challenged the same.

2. I have heard the learned counsel for the petitioner and have

also gone though the record. The learned Labour Court after recording

the evidence of the respondent/workman had given an opportunity to

the petitioner/management to cross examine the workman and to

adduce his evidence, however, despite this the petitioner/management

did not appear. They had been proceeded ex-parte on account of their

absence as a consequence of which the testimony of the

respondent/workman with regard to the relationship of employer and

employee between the parties is completely unrebutted. The learned

Labour Court had accordingly held that on the basis of the unrebutted

testimony of the respondent/workman the services of the said workman

were terminated on 21st May, 1996 without complying with the

provisions of Section 25-F of the Industrial Disputes Act, 1947, and

accordingly, directed the reinstatement and the payment of full back

wages.

3. In the entire writ petition, there is not an iota of averment as

to why the petitioner/management did not appear either or even

thereafter till the time the award was passed and thus there is no

ground for setting aside ex parte award as 'sufficient cause' is not

proved.

4. The learned counsel for the petitioner has contended that the

order regarding the reinstatement and the payment of full back wages

which has been passed by the learned Labour Court may be modified

on account of the fact that in 1999 a circular was issued by the

Government of U.P. that all the Public Sector Undertakings

Corporations to downsize the permanent staff strength as a measure of

reducing the expenses of the Government. It is contended that so far as

the petitioner/corporation is concerned, its staff strength had been

fixed at 130 and consequently in order to give effect to the said circular

the petitioner/corporation had to downsize the staff in category of class-

IV of the Corporation.

5. It has been now laid down by the Apex Court in number of

judgments that merely on account of the fact that the termination of a

workman is held to be illegal and unjustified does not ipso facto or

automatically result in passing the order of reinstatement and the

payment of back wages. Reliance in this regard is placed on the

following judgments :

(a) PVK Distillery Ltd. Vs. Mahendra Ram JT 2009 (3) SC

(b) Rajasthan Lalit Kala Academy Vs. Radhey Shayam 2008 (10) SCALE 561

6. Keeping in view the aforesaid legal position that the

petitioner/corporation was required to downsize the staff strength,

therefore, this Court feels that instead of directing the reinstatement

and the payment of full back wages a onetime compensation of Rs.2.00

lakh is to be directed to be paid to the respondent/workman. The

aforesaid amount is directed to be paid keeping in view the last drawn

wages, length of service which has put in by the respondent/workman

with the petitioner/corporation. Needless to point that the aforesaid

amount shall be in addition to amount which is to be paid by the

petitioner/corporation in compliance to the order dated 23rd November,

2006 passed under Section 17-B of the Industrial Disputes Act, 1947.

It is also made clear that the aforesaid amount shall be paid within a

period of six weeks from today, failing which entire amount shall carry

an interest @7% from the date of the award till the actual payment.

7. With these directions, the ex parte award dated 15.3.2004 is

modified to the extent that instead of reinstatement and payment of

back wages, the respondent is paid one time compensation towards the

full and final settlement of his entire claim. With these modifications,

the writ petition is partially allowed.

No order as to costs.

May 08, 2009                                           V.K. SHALI, J.
RN