Suresh Kumar vs Presiding Officer Labour ...
2010 Latest Caselaw 1761 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.7362/1999

%                                                  Date of decision:5th April, 2010

SURESH KUMAR                                                       ..... Petitioner
                               Through: Mr. Vinay Kumar Sabharwal, Advocate.

                                          Versus

PRESIDING OFFICER
LABOUR COURT-IV & ORS.                                ..... Respondents
                  Through: Mr. Anil Mittal, Advocate for R-3.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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                   Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner workman seeks a writ of certiorari with respect to the award dated

1st June, 1999 of the Labour Court on the following reference:-

"Whether the termination of services of Shri Suresh Kumar is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

2. The Labour Court answered the reference in favour of the workman and against

the respondent No.3 Uttar Pradesh Rajkiya Karyashala Sthapan Khand /employer and

held the termination to be illegal and unjustified. However in view of the plea of the

respondent No.3 employer that the U.P. Government which had taken up the fabrication

work at Okhla Barrage and had set up the unit in which the petitioner was employed, had

on completion of the work w.e.f. 31st March, 1985 closed the said unit, the Labour Court

granted the relief only of payment of wages w.e.f. March, 1983 till 31st March, 1985 i.e.

the date of closure of the unit, to the petitioner workman. Aggrieved therefrom this writ

petition has been preferred.

3. The respondent No.3 employer having not challenged the award, the finding of

the Labour Court of the termination of the services of the petitioner workman being

illegal and unjustified has attained finality. Even otherwise I may notice that it was the

plea of the respondent No.3 employer that the petitioner workman had not attended duties

since 10th March, 1983 without intimation and had failed to join back inspite of

communication and thus his services were terminated vide letter dated 2nd June, 1983. It

was the case of the petitioner that he had fallen ill and had reported back for duty on 30th

May, 1983 but was not allowed to join. It is the admitted position that no inquiry was

held by the respondent No.3 employer prior to termination of services of the petitioner. A

Division Bench of this Court in Sakuntala's Export House (P) Ltd. Vs. Secretary

(Labour) MANU/DE/0541/2005 has held that abandonment amounts to misconduct

which requires proper inquiry. I have dealt with this aspect in detail recently in judgment

dated 18th March, 2010 in W.P.(C) No.3345/2000 titled Delhi Transport Corporation Vs.

Arun Kumar and need is not felt to repeat the said discussion. Suffice it is to state that

the finding of the Labour Court qua the termination being illegal, is even otherwise found

to be correct.

4. The only question surviving in this petition is thus of whether the Labour Court

was justified in declining the relief of reinstatement to the petitioner merely for the reason

of the unit of the Government of U.P. in which the petitioner was employed having

closed. The petitioner in this regard relies upon the award dated 28th September, 1987 of

the Labour Court in another reference in a dispute raised by another employee namely

Shri Satbir Singh of the same unit. The Labour Court had directed the relief of

reinstatement with full back wages and continuity in service. It was inter alia held that

closure of the unit did not justify the termination of services and the employee had to be

given the option to work in another department of the Government of U.P. It is the

uncontested plea of the petitioner that the said employee namely Shri Satbir Singh was

re-employed pursuant to the award of the Labour Court. It is also the uncontested plea of

the petitioner workman that the services of another employee Shri Mahender Pal Singh in

the same unit were also terminated and he had also raised an industrial dispute and this

Court vide order dated 18th March, 2003 in W.P.(C) No.919/1999 titled Mahender Pal

Singh Vs. State of U.P. had directed reinstatement of the said employee also and the said

employee had also since been reinstated by the respondent No.3 employer. It is thus the

plea of the counsel for the petitioner that the petitioner is also entitled to the same relief

and is willing to work at any workplace/unit/department of the respondent No.3 employer

in Delhi or in U.P. Reliance is placed on Mohan Lal Vs. Bharat Electronics Ltd. (1981)

II LLJ 70 (SC) laying down that where the termination is found to be illegal, there is no

cessation of service and the workman is deemed to have continued to remain in service

and there is no need to direct reinstatement. The counsel for the petitioner thus contends

that the petitioner is thus deemed to be in employment and is entitled to back wages since

after 31st March, 1985 till date also with all consequential benefits and is entitled to work

and to further payments. The present age of the petitioner was enquired. He is informed

to be now about 55 years of age.

5. Per contra, the counsel for the respondent No.3 has contended that the petitioner

was employed for the work only at the unit which has closed down and his services are

not required at any other place. As far as the reference by the petitioner to the

award/orders in the cases of other workmen are concerned it is contended that the

petitioner is not entitled to the benefits thereof because the terms of employment of the

other employees were different and they had built and made out a case for reinstatement

and no such case has been made out by the petitioner. It is stated that in other cited cases

the workman had requested for an offer for transfer to another place; no such request was

made by the petitioner. It is further contended that the petitioner has not stated that his

appointment was for working in any department of the Government of U.P. or that his job

was transferable.

6. The counsel for the petitioner rejoins by contending that it was for the respondent

No.3 employer to plead and prove that the appointment of the petitioner was only for the

unit at Okhla.

7. I have enquired from the counsels whether there is any document of appointment.

There is none. The Labour Court also has held the termination of employment of the

petitioner to be bad only for the reason that he had worked for more than 240 days in the

preceding year.

8. Though Section 2 (oo) (bb) exempts termination of the services of a workman as a

result of non renewal of the contract of employment on its expiry or on termination of

such contract but, "under a stipulation in that behalf contained therein". In the present

case there is nothing to show that there was any stipulation in the appointment of the

petitioner that his employment was to continue only till the completion of the work in the

unit at Okhla in which the petitioner was employed. Thus at this stage, it is not open to

the respondent No.3 employer to take the said plea.

9. The next question which arises is whether the Labour Court was justified in

granting wages from the date of illegal termination and till the date of closure of the unit

only. The same cannot be held to be justified once it is held that Section 2 (oo) (bb) did

not apply.

10. The petitioner having now attained the age of 55 years, the question of this Court

even while allowing this petition directing the reinstatement of the petitioner does not

arise. The reinstatement of the petitioner now would disturb the harmony in the cadre.

Even otherwise with the petitioner having remained out for the last over 27 years, it will

not be beneficial to either of the parties for the petitioner to work with the respondent

No.3 employer till he attains the age of superannuation. The counsels were asked to

address on the measure of compensation to be awarded in lieu of reinstatement. While the

counsel for the petitioner contends that the said measure has to be the wages which the

petitioner would have drawn while continuing in employment, the counsel for the

respondent No.3 employer relies on the measure of damages in Section 25 F. It is

contended that the petitioner had admittedly worked for two years only and even in case

of retrenchment, would have been entitled only to compensation equivalent to 15 days

emoluments for every completed year of service.

11. In my view neither of the aforesaid can be accepted. An employer whose action

of termination of an employee is found to be illegal cannot turn around and plead that no

direction for reinstatement be made and the employee be deemed to have been retrenched

under Section 25F of the Act. It is for the employer to in his wisdom choose the action

against the employee. If he chooses to terminate the services and which termination is

found illegal, he cannot avail the protection of retrenchment. He ought to have satisfied

the conditions of retrenchment under Section 25F at the relevant time. Compensation has

to necessarily follow a declaration of illegality. Similarly an employee who has not

worked cannot claim full wages which were payable in consideration of the work to be

done for the employer. In the present case the award being in favour of the employer, the

petitioner workman did not even have the benefit of Section 17B of the Act. The

petitioner workman in the last 27 years must have worked elsewhere and earned for the

said work and cannot claim full wages from the respondent No.3 employer also.

However, since there is no plea of the respondent No.3 of the petitioner working

elsewhere it can safely be presumed that such work by the petitioner must not have been

with any employer offering the same level of security of employment as provided by the

respondent No.3 Government of U.P. The compensation thus has to reflect the savings

which the respondent No.3 Government of U.P. would make by avoiding the

reinstatement of the petitioner. In the event of reinstatement, the respondent No.3 would

be liable for all post retirement benefits also of the petitioner without the petitioner

having worked for the respondent No.3. Considering all the said aspects, I deem a further

compensation of Rs.2 lacs to be sufficient. While arriving at the said compensation I have

taken into consideration that the compensation was payable 27 years ago and would be

payable now.

12. The writ petition succeeds to the aforesaid extent. The respondent No.3 is directed

to pay to the petitioner within four weeks hereof a sum of Rs.2 lacs, failing which the

sum shall also incur simple interest at 9% p.a. from the expiry of four weeks hereafter

and till the date of payment. The petitioner is also awarded costs of Rs.10,000/- of these

proceedings, payable along with the compensation aforesaid.

The petition is disposed of.

RAJIV SAHAI ENDLAW (JUDGE) 5th April, 2010 pp