Delhi High Court
The Management Of M/S Hindustani ... vs Jagdish Singh Rajpoot on 22 September, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 4453/2003
% Date of Decision: 22nd September, 2009
# THE MANAGEMENT OF M/S. HINDUSTANI DAWAKHANA AND AYURVEDIC
RASAYANSHALA
..... PETITIONER
! Through: Ms. Ruchi Sindhwani, Advocate
VERSUS
$JAGDISH SINGH RAJPOOT
.....RESPONDENT
^ Through: Vikas Dutta, 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 management of the petitioner in this writ petition seeks to
challenge an Industrial Award dated 08.07.2002 in ID No. 87/1990
directing reinstatement of the respondent with full back wages.
2. The petitioner is Hindustani Dawakhana and Ayurvedic
Rashayanashala which was an ancillary unit of A&U Tibbia College. The
petitioner was getting grant from the Delhi Government from time to
time but w.e.f. 01.05.1998, the petitioner was merged into A&U Tibbia
College alongwith ancillary unit as per the Tibbia College Takeover Act,
1997.
3. The respondent was appointed by the management of the
petitioner as a helper on daily wages @ Rs. 21.60 per day with effect
from 18.04.1988. He worked for short spell of time intermittently
between 18.04.1988 till 31.03.1990. He was not granted any further
extension beyond 31.03.1990 which was treated as his termination from
service. Aggrieved therefrom, he had raised an industrial dispute which
was referred by the appropriate Government in the Government of NCT
of Delhi to the Labour court for adjudication.
4. The management of the petitioner had disputed the claim of the
respondent before the Labour Court on the ground that respondent was
not entitled for reinstatement or back wages as he was only a daily
wager. The petitioner had taken a stand before the Labour Court that the
services of the respondent were not terminated and in fact he was not
granted any extension beyond 31.03.1990 as his services were not
required by the petitioner.
5. The Court below, however, has found the termination of the
respondent to be illegal and, therefore, has directed his reinstatement
with back wages. It is aggrieved by this order of the Court below, the
petitioner has filed this writ petition.
6. Ms. Ruchi Sindhwani, learned counsel appearing on behalf of the
petitioner management has argued that since the respondent was
employed only as a daily wager, the award directing his reinstatement is
perverse and has to be set aside by this Court.
7. It is not disputed by the counsel for the respondent that the
appointment of the respondent with the petitioner was as a daily wager.
It is also not disputed by him that the respondent had worked
intermittently for short spell of time during the period between
18.04.1988 till 31.03.1990. The appointment of the respondent with
petitioner management as daily wager was a back door entry as it was
not made by following the procedure for regular appointment. His
appointment was in contravention of provisions of Article 14 and 16 of
the Constitution of India.
8. Ms. Ruchi Sindhwani, counsel appearing on behalf of the petitioner
has contended that the respondent even does not possess the requisite
qualification for the appointment to the post of Assistant Attar/Assistant
Compounder. According to her, even this post of Assistant
Attar/Assistant Compounder does not exist with the management of the
petitioner as on date, which fact has been stated by the petitioner on
affidavit.
9. I need not go into the question whether the respondent possessed
the requisite qualification for the post of Assistant Attar/Assistant
Compounder or whether there is any post of Assistant Attar/Assistant
Compounder in the petitioner management because in the opinion of this
Court, the impugned award directing reinstatement of the respondent
with full back wages cannot be sustained in view of the judgment of the
Hon'ble Supreme Court in Jagbir Singh Vs. Haryana State
Agriculture Marketing Board and Anr., [Civil Appeal No.
4334/2009 arising out of SLP (C) No. 987/2009] decided on
14.07.2009, wherein it was held :-
" It would be, thus, seen that by catena of
decisions in recent time, this Court has
clearly laid down that an order of
retrenchment passed in violation of Section
25F although may be set aside but an award
of reinstatement should not, however, be
automatically passed. The award of
reinstatement with full back wages in a case
where the workman has completed 240 days
of work in a year preceding the date of
termination, particularly, daily wagers has not
been found to be property by this Court and
instead compensation has been awarded.
This Court has distinguished between a daily
wager who dies not hold a post and a
permanent employee. Therefore, the view of
the High Court that the Labour Court erred in
granting reinstatement and back wages in
the facts and circumstances of the present
case cannot be said to suffer from any legal
flaw. However, in our view, the High Court
erred in not awarding compensation to the
appellant while upsetting the award of
reinstatement and back wages. As a matter
of fact, in all the judgments of this Court
referred to and relied upon by the High Court
while upsetting the award of reinstatement
and back wages, this Court has awarded
compensation.
While awarding compensation, the host of
factors, inter alia, manner and method of
appointment, nature of employment and
length of service are relevant. Of course,
each case will depend upon its own facts and
circumstances. In a case such as this where
the total length of service rendered by the
appellant was short and intermittent from
September 1, 1995 to July 18, 1996 and that
he was engaged as a daily wager, in our
considered view, a compensation of Rs.
50,000/- to the Appellant by Respondent No.
1 shall meet the ends of justice. "
10. In view of the above judgment of the Hon'ble Supreme Court in
Jagbir Singh's Case, the directions for reinstatement of the respondent
with back wages cannot be sustained. The petitioner had hardly worked
for short spell of time with the petitioner management for about two
years between 18.04.1988 and 31.03.1990. In the opinion of this court,
the relief granted by the Labour Court in favour of the respondent needs
to be moulded and he can be compensated by awarding a reasonable
compensation for the alleged termination of his services by the petitioner
management.
11. Having regard to the period of service rendered by the respondent
with the petitioner management as daily wager, his age and other
relevant circumstances, this Court is of the opinion that the ends of
justice will be adequately met by awarding a compensation of Rs.
50,000/- in favour of the respondent in lieu of reinstatement and back
wages granted to him vide impugned award.
12. In view of what has been stated above, the impugned award is
modified to the extent that instead of reinstatement and back wages, the
respondent will be entitled only for a compensation of Rs. 50,000/- to be
paid by the petitioner to him within a period of eight weeks from today.
In case, the petitioner management fails to pay the compensation
amount of Rs. 50,000/- to the respondent workman within eight weeks
from today, then the respondent will also be entitled to interest @ 9% per
annum on the compensation amount of Rs. 50,000/- till the date of
payment.
13. This petition is partly allowed and stands disposed of in terms
referred above.
September 22, 2009 S.N.AGGARWAL, J
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