Shri Bijender Kumar vs Municipal Corporation Of Delhi
2009 Latest Caselaw 2243 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No. 297/2009

                                           Reserved on : 22.05.2009

                                      Date of Decision : 25.05.2009

Shri Bijender Kumar                                  ......Petitioner
                                Through: Mr.Anuj Aggarwal, Advocate

                                  Versus

Municipal Corporation of Delhi              ...... Respondent
                          Through : Ms.Reena Singh, 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 ?          NO
3.     Whether the judgment should be reported
       in the Digest ?                                   NO

V.K. SHALI, J.

1. The petitioner in the instant writ petition has challenged the

award dated 11th May, 2007 in ID No. 190/2006/2004 passed by the

learned Labour Court No. II, Karkardooma Courts, Delhi. The

aforesaid award has been challenged on the ground that the learned

Labour has held the termination of the services of the petitioner to be

illegal and unjustified, but the learned Labour Court instead of granting

the petitioner the benefit of reinstatement and continuity of service with

full back wages, has directed payment of only a sum of Rs.50,000/- as

lump sum compensation.

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

the record.

3. Briefly stated the facts of the case are that appropriate

government had made a reference in exercise of its power under

Section 10(1) (c) and 10 (1) (d) read with Section 12 sub section 5 of the

Industrial Disputes Act, 1947 on 12th May, 2003 to the Labour Court

on the following lines:

"Whether the services of Sh. Bijender Kumar, S/o Sh. Mam Chand, 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. Pursuant to the aforesaid reference, the petitioner filed his

statement of claim wherein it was stated that he was employed as a

Chowkidar w.e.f 20th March, 1997 on monthly basis, his name was

placed on Muster Roll and he was treated as daily rated casual worker

by the respondent. It is alleged that his services were terminated vide

office order dated 2nd November, 2001 which was served on him on 19th

November, 2001. It was alleged that as the petitioner had completed

240 days of continuous service with the respondent in a span of twelve

calendar months, and therefore, before termination the provisions of

Section 25 F, G and H read with rule 76 and 77 of the Industrial

Disputes Act, 1947 were not complied with. Since a demand notice

dated 10th April, 2003 sent by the petitioner to the respondent failed to

bring any desired result he was constrained to approach the

appropriate government for the reference.

5. The respondent in its WS has admitted that the petitioner was

employed by them as a daily rated worker, however, it was stated that

as the petitioner was engaged on the basis of false documents having

the forged signatures of the officials of the respondent. He had also

succeeded to place on record a false office order dated 10th July, 1992

pertaining to one Mr. Vijender Singh workman. It was stated that the

petitioner had given a wrong date of birth, and accordingly, when he

was engaged his age was only 13 years and his services were

disengaged after taking approval of the appropriate authority.

6. The learned Labour Court after permitting the parties to adduce

their evidence passed a detailed and reasoned award holding the

termination of the petitioner to be illegal and unjustified by observing

that there were 64 employees who were engaged at the zonal level who

were class IV employees. It was held by it that they were appointed

without obtaining the approval of the competent authority, namely,

Additional Commissioner/Commissioner, MCD. The name of the

petitioner appeared in the said list of employees at Serial No. 10.

Further, it took into consideration document as Ex. MW1/6 which

shows that disengagement of the services of the petitioner was done

after obtaining prior approval of the competent authority. The

petitioner had also admitted in his cross examination that although

Additional Commissioner, MCD is competent authority for giving the

sanction for engagement on daily wagers, however, in his case no such

sanction was obtained. The learned Labour Court came to the

conclusion that the services of the petitioner were terminated without

complying with the provisions of the I.D. Act therefore, it held that his

services have been terminated illegally. But while considering the

question as to whether the petitioner should be granted benefit of

reinstatement and continuity of service or one time compensation in

lieu thereof, the learned Labour Court referred to a number of

judgments of the Apex Court and the High Court cited by the rival sides

and decided to take more pragmatic view that the latest trend of the

Supreme Court is that instead of directing reinstatement the Courts

have been encouraged to grant one time lump sum compensation. It

has referred to specifically a Division Bench judgment of this Court in

case titled Pramod Kumar & Anr. Vs. The Presiding Officer & Anr.

2006 LLR Delhi 302 (DB) wherein the petitioner was granted a relief of

compensation to the tune of Rs.50,000/- along with the interest @8%.

In the instant case also instead of granting the benefit of reinstatement

and continuity of service the learned Labour Court has granted one

time lump sum compensation. This is primarily on account of the

reason firstly the petitioner himself has admitted in cross-examination

that he was daily wager and secondly even this appointment of the

petitioner was not done on the basis of the sanction granted by the

competent authority. It was observed that in case the petitioner was

daily wager and not appointed on the sanction of a competent authority

then Secretary, State of Karnataka Vs. Uma Devi AIR 2006 SC 1806

would come in his way his service could not be ever regularized.

Accordingly the aforesaid compensation of Rs.50,000/- was granted

which this Court feels is just, fair and reasonable. Merely because in

some other case higher compensation has been granted in some

reported cases will not be in itself to be ground for enhancing the

compensation in this case. Moreover this is primarily a discretion to be

exercised by the Labour Court which has exercised the same by taking

some relevant and important factors.

7. Further the aforesaid compensation has been recovered by the

petitioner by instituting proceedings under Section 33-C-1 of the

Industrial Disputes Act, 1947 after the passing of the award. Yet after

having obtained the complete benefit in terms of the award the

petitioner has now woken up after expiry of almost more than a year

and a half and file the present writ petition for seeking the direction to

reinstatement and continuity of service. It seems that the very fact that

the petitioner had recovered the money by instituting proceedings

under Section 33-C-I of the Industrial Disputes Act, 1947 and having

chosen to accept the award by not assailing it as expeditiously cannot

be permitted to raise a state claim. The possible and certainly a

reasonable time within which the writ ought to have been filed is one

year. The petitioner has now suddenly woken up from the slumber to

challenge the award dated 11th May, 2007 with a view to extract more

money from the respondent. It may be pertinent here to mention that

the award has been passed on 11th May, 2007 on which date the

petitioner knew that he has not been granted the benefit of

reinstatement, and therefore, he ought to have challenged the award

within a reasonable time from 11th May, 2007 instead of this writ

petition is filed in towards the end of the December 2008 challenging

the award. This lapse of a period of almost more than 1 ½ years is in

my considered opinion a sufficient ground for denying the petitioner the

benefit of assailing the award on the question of quantum.

8. The learned counsel for the petitioner has urged that though the

award was passed on 11th May, 2007 but it was published only on 6th

November, 2007, and therefore, it was after publication of the award

only that the period of limitation within which the writ petition ought to

be filed is to be calculated.

9. I do not agree with this proposition of the learned counsel for the

petitioner that the cause of action to assail the award arises to the

petitioner only after the publication of the award. The award itself is is

pronounced in the open court on 11th May, 2007 when the rights and

obligations of the parties have been crystallized by the industrial

adjudicator and if any of the parties feels aggrieved by the said

crystallization of the rights it must assail the same before the

appropriate forum. He cannot be expected to wait for the publication

of the award which is only a matter of formality for giving the legitimacy

in the event of enforceability. Since the petitioner himself was not

accepting the award, therefore, there was no occasion for him to wait

for getting the award enforced. Rather the fact shows that the

petitioner not only recovered the aforesaid amount pursuant to the

publication but also waited for more than 1 ½ years to challenge the

award which in my view is fatal to the case of the petitioner as the

present writ petition gets hit by inordinate delay and laches.

10. For the reasons mentioned above, the writ petition of the

petitioner is totally misconceived and accordingly the same is

dismissed.

V.K. SHALI, J.

MAY 25, 2009 KP