Delhi High Court

Management Of Ashok Hotel vs Delhi Administration & Ors. on 16 April, 2010

Author: Rajiv Sahai Endlaw

                  *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.6686/2003

%                                             Date of decision: 16th April, 2010

MANAGEMENT OF ASHOK HOTEL                      ..... Petitioner
                Through: Mr. Amit Seth, Advocate with Mr. Amit
                         Wadhwa, Asst. Manager (HR) of
                         petitioner.

                                        Versus

DELHI ADMINISTRATION & ORS.                    ..... Respondents
                  Through: Mr. Gulshan Chawla and Mr. Maya
                           Ram, Advocates for R-4 (1 to 6) and for
                           Sh. Umed Singh.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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         No
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner by this petition impugns the award dated 22nd October,

2001 of the Labour Court holding the termination by the petitioner of the

services of the six workmen impleaded as respondent no.4 [1 to 6] and namely

i) Om Prakash, ii) Bhim Singh, iii) Parvesh Hassan, iv) Shreepal, v) Kamal and

vi) Parmanand to be bad, illegal and unjustified and directing the petitioner to

reinstate the said workmen with continuity of service alongwith full back wages

from the date of cessation of their services i.e. w.e.f. 1st September, 1990. The

workman Shri Parmanand has however been held entitled to reinstatement

alongwith only 75% of back wages w.e.f. 1st September, 1990. Notice of the

petition was issued to the respondent workmen and vide ex parte ad interim order

of that date, the proceedings initiated by the respondent workmen for

enforcement of the award were stayed. Litigation expenses of Rs.5000/- for each

of the workmen amounting to Rs.30,000/- were directed to be deposited by the

petitioner. The respondent workmen on being served have contested the writ

petition by filing a counter affidavit and have also filed separate applications

under Section 17B of the ID Act and which are pending consideration. The said

applications were listed on 5th April, 2010 when the counsel for the petitioner

was directed to furnish a tabulation showing the amounts which would be

payable under Section 17B of the Act at the rate of the last drawn wages and at

the rate of minimum wages w.e.f. the date of the making of the award and also

with effect from the date of the filing of the said applications. The counsels were

also directed to take instructions as to the possibility of amicable settlement of

the matter.

2. The counsel for the petitioner has today stated that he has no instructions

from the petitioner for amicable settlement. He however states that Mr. Amit

Wadhwa, Assistant Manager, H.R. of the petitioner is present in the court. The

counsel for the respondent workmen has however expressed willingness for

amicable settlement. In the circumstances, with the consent of the counsel for

the respondent workmen, the counsels for the parties have been heard on the

aspect of Section 17B of the ID Act as well as on merits. The counsel for the

petitioner has handed over the tabulation directed to be produced on the last date.

As per the said tabulation, at the rate of the minimum wages and from the date of

the award, a sum of approximately Rs. 3,40,000/- would be due to each of the

workmen under Section 17B of the Act. The counsel for the petitioner however

contends that the respondent workmen are not entitled to order under Section

17B of the ID Act from the date of the award but at best from the date of the

filing of the application under Section 17B of the ID Act only and on which basis

a sum of approximately Rs. 1,50,000/- would be due to each of the respondent

workmen. The counsel for the respondent workmen however controverts that the

direction under Section 17B can be w.e.f. the date of the filing of the application.

He contends that the said order necessarily has to be from the date of the award.

The applications under Section 17B were filed in the end of the year 2006-2007.

There is controversy between the parties as to the reason for filing of the

applications long after the date of the award. The counsel for the respondent

workmen contends that the present writ petition itself was filed long after the

award and the respondent workmen were served with notice thereof even later

and filed the applications under Section 17B immediately on being served with

the notice of the writ petition. He contends that the respondent workmen had in

the meanwhile initiated proceedings before the Labour Court for enforcement of

the award.

3. The counsel for the petitioner has also argued that the award, insofar as in

favour of the workman Shreepal, is obviously erroneous. It is urged that all the

respondent workmen in the present case had been employed by the petitioner as

casual/temporary workers on daily wages; that the Labour Court has in the award

done the computation of the number of days for which each of the workman had

worked; that qua the respondent workman Shreepal the finding returned is that he

had worked for 161 days only i.e. he had not even worked for the minimum of

240 days on which basis relief had been granted. It is contended that in para 11

of the award also, while giving the names of the workmen who had completed

more than 240 days of service, the name of Shreepal does not find mention;

however in the relief paragraph of the award, the name of the respondent

Shreepal has erroneously been mentioned. It is contended that the award, insofar

as it is in favour of the respondent Shreepal, is liable to be set aside on this

ground alone.

4. The counsel for the petitioner has further urged that the Labour Court has

in computing the period of 240 days qua the other respondent workmen not

restricted the inquiry to the preceding one calendar year only from the date of

disengagement and had erroneously taken into consideration the entire period for

which the other respondent workmen had worked. Without prejudice to the said

plea, it has also been contended that the rule of reinstatement is not an invariable

rule and especially in case of casual / daily wagers the rule invariably followed

by court is of compensation in lieu of reinstatement. Reliance in this regard is

placed on Jagbir Singh Vs. Haryana State Agriculture Marketing Board AIR

2009 SC 3004.

5. At this stage the counsel for the respondent workmen has pointed out that

another workman (and who is not a respondent herein) namely Shri Umed Singh

was also a claimant in the same proceedings before the Labour Court; that

though the finding of the Labour Court is that the said Umed Singh had

completed more than 240 days of service and his name also finds mention in para

11 (supra) of the award but his name has erroneously been left out from the relief

paragraph of the award. It is stated that the said Umed Singh had filed an

application before the Labour Court for correction of the award and which

application has been recently allowed. The counsel for the respondent workmen

state that they are counsel for the said Sh. Umed Singh also. They agree that

there is an error in the award; that instead of Umed Singh the name of Shreepal

has been wrongly mentioned. Mr. Gulshan Chawla and Mr. Maya Ram,

Advocates state that they are in a position to make a statement on behalf of the

respondent Shreepal and the said Shri Umed Singh also. They further state that

the respondent workmen and Sh. Umed Singh are not insisting upon

reinstatement and are agreeable to a lump sum compensation in lieu of

reinstatement, back wages and all their claims whatsoever against the petitioner.

The counsel for the respondent workmen and for Shri Umed Singh further state

that if reasonable compensation is so awarded by this court, they are willing to

withdraw the applications already preferred under Section 17B of the ID Act.

6. The counsels have been heard on the aspect of quantum of compensation.

No merit is found in the plea of the petitioner that the respondent workmen and

Shri Umed Singh are not entitled to even compensation from the petitioner. The

scope of interference by this court in the award of the Labour Court is minimal.

The finding of fact of the Labour Court of the respondent workmen excluding

Shreepal and including Sh. Umed Singh is a finding of fact and cannot be

interfered with by this court. Considering that the amounts payable under Section

17B itself, would be, minimum in excess of Rs. 1,50,000/- and maximum in

excess of Rs. 3,50,000/-, this court is of the opinion that lump sum compensation

in full and final settlement, of Rs.2,50,000/- to each of the respondents (except

Shreepal) and to Shri Umed Singh would be proper. The counsel for the

respondent workmen and the counsel for Shri Umed Singh consent/agree to the

same and further request that the same be made payable within six weeks of

today. They further state that upon receipt of the said sum of Rs.2,50,000/- the

said respondents and Shri Umed Singh shall be left with no claims whatsoever

against the petitioner. They further have no objection to the award in so far as in

favour of respondent Shreepal being set aside / quashed. They also request that

instead of Sh. Umed Singh being required to enforce the corrected award as

aforesaid or the petitioner being required to challenge the said corrected award in

favour of Shri Umed Singh, the same order in this proceeding only be made with

respect to Shri Umed Singh. The counsel for the petitioner also has no objection

to the order in this writ petition with respect to Shri Umed Singh also.

7. Accordingly, this writ petition is disposed of with the following

directions:

a. All the pending applications u/S 17B of the I.D. Act of each of the

respondent workmen being CM.No.605/2007, 644 - 648/2007 are

withdrawn by the counsel for the respondent workmen and are dismissed

as withdrawn.

b. with the consent of the counsel for the respondent workmen including

Shreepal, the award insofar in favour of Sheepal is set aside/quashed.

c. with the consent of the counsel for the petitioner and the counsel for the

respondent workmen and who is also the counsel for Shri Umed Singh,

Shri Umed Singh aforesaid is impleaded as a party to the present

proceedings and the reference hereafter to the respondents shall be

exclusive of the said Shreepal and inclusive of Shri Umed Singh.

d. the award in favour of the respondents of reinstatement with back wages

is modified to that of payment by the petitioner to each of the said

respondents i.e. respondent i) Om Prakash, ii) Bhim Singh, iii) Parvesh

Hassan, iv) Kamal, v) Parmanand and vi) Umed Singh a sum of

Rs.2,50,000 within six weeks of today. If the payment is not made within

six months the same shall also incur simple interest at the rate of 7% per

annum. It is clarified that the said compensation is in full and final

settlement and in lieu of the claim of the said respondents for back wages,

reinstatement and otherwise and on receipt of the said amounts, the said

respondents shall be left with no claims whatsoever against the petitioner.

The counsel for the respondents assures that the said respondents have not

initiated any other proceedings/complaint against the petitioner or its