Gauri Shanker vs Municipal Corporation Of Delhi
2009 Latest Caselaw 3857 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(C) No. 8520/2007

%                  Date of Decision: 18 September, 2009


# GAURI SHANKER                             ..... PETITIONER
!            Through: Mr. A.K. Soni, Advocate.

                                 VERSUS

$ MUNICIPAL CORPORATION OF DELHI            .....RESPONDENT

^             Through: Ms. Saroj Bidawat, 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) The petitioner in this writ petition seeks to challenge an industrial

award dated 07.09.2007 in I.D. No. 101/06/03/96 by which he has been

awarded compensation of Rs. 80,000/- in lieu of his claim for

reinstatement and back wages for alleged termination of his services by

the MCD (respondent herein) w.e.f. 19.07.1995.

2. The petitioner had worked as Sewer Cleaning Machine (SCM) Driver

with the respondent as daily wager for short spell of time as and when

the services were required during the period between 10.01.1987 till

08.03.1995. His appointment as SCM Driver as daily wager came to an

end on 08.03.1995. There is no dispute about this fact. The petitioner

was, however, again employed by the respondent as Work Assistant on

daily wage basis on muster roll w.e.f. 09.03.1995. His said employment

continued till 18.07.1995 and thereafter he ceased to be in the

employment of the respondent. No letter of termination was given to

him obviously because he was a daily wager. The petitioner however

aggrieved by non-continuance of his employment, raised an industrial

dispute purporting it to be illegal termination which was referred by the

appropriate Government in the Government of NCT of Delhi to the Labour

Court for adjudication. The Labour Court has found the termination of the

petitioner to be illegal and has, therefore, awarded a compensation of Rs.

80,000/- in lieu of his claim for reinstatement and back wages. The

petitioner in this writ petition is aggrieved by the amount of

compensation awarded to him by the Industrial Adjudicator.

3. Mr. A.K. Soni, learned counsel appearing on behalf of the petitioner,

submits that the compensation of Rs. 80,000/- awarded by the Court

below for illegal termination of services of the petitioner is quite

inadequate and needs to be enhanced by this Court.

4. I have given my anxious consideration to the submissions made by

the learned counsel appearing on behalf of the petitioner for

enhancement of compensation and I have not been able to persuade

myself to agree with his submissions. It is a matter of fact that the

petitioner had hardly worked for about four months as daily wager on the

post of Work Assistant which led to raising of industrial dispute by him for

his alleged termination. The appointment of the petitioner with the

respondent was not made after following a procedure for regular

appointment. His appointment was a back-door entry and was in

contravention of provisions of Articles 14 & 16 of the Constitution of

India.

5. In Secretary, State of Karnataka & Others vs Umadevi & Others

2006 (4) Scale Page 197, it was held by the Hon'ble Supreme Court as

under:

"the workman who has been employed against the rules and procedures are not entitled for regularization in the service. As has been held that while appointments are made on temporary or casual, courts are swayed by the fact that the concerned person has worked for sometime and in some cases for a suitable length of time. It is not as if a person who so accept the engagement either temporary or casual in nature is not aware of the nature of his employment, he accepts the employment with the eyes open, it may be true that he is not in a position to bargain. It would not be appropriate to jettison the constitutional scheme of employment. This would be creating another mode of appointment which is not possible."

6. It is an admitted fact on record that the petitioner was a daily

wager with the respondent. It is also an admitted fact that he had

worked for four months as Work Assistant before termination of his

services by the respondent w.e.f. 19.07.1995. Since the respondent has

not challenged the impugned award, this Court need not go into the

question of correctness of the findings contained in the said award

regarding validity of termination of services of the petitioner.

7. In Telecom District Manager and Others Vs. Keshab Deb, (2008) 8

SCC 402, it has been held by the Hon'ble Supreme Court as under:

"Even in a case where an order of termination is illegal, an automatic direction for reinstatement with full back wages is not contemplated. He was at best entitled to one month's pay in lieu of one month's notice and wages of 15 days of each completed years of service as envisaged under Section 25F of the the Industrial Disputes Act. He could not have been directed to be regularized in service or granted a temporary status."

8. In the present case, the petitioner has worked with the respondent

on the post of Work Assistant as daily wager for about four months before

termination of his services and he has been awarded compensation of Rs.

80,000/-, which by no means, can be said to be inadequate. This

compensation amount of Rs. 80,000/- is stated to has already been paid

by the respondent to the petitioner.

9. In view of what has been stated above, I do not find any infirmity,

illegality or perversity in the impugned award that may call for an

interference by this Court in exercise of its 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.

SEPTERMBER 18, 2009                                    S.N.AGGARWAL, J
'BSR'