Delhi Development Authority vs The Presiding Officer & Another
2010 Latest Caselaw 2009 Del

                  *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                   WP(C) 2468/1998

%                                                  Date of decision:19th April, 2010

          DELHI DEVELOPMENT AUTHORITY                      ..... Petitioner
                       Through: Mr. Arun Birbal, Advocate.

                                          Versus


          THE PRESIDING OFFICER & ANOTHER                             ..... Respondents
                        Through: Ex parte

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 DDA impugns the award dated 25th March, 1997 of the

Labour Court holding the termination by the petitioner DDA of the services of the

respondent no.2 workman to be illegal and unjustified and directing the petitioner

DDA to reinstate the respondent no.2 workman with full back wages and

continuity of service. This court vide ex parte order dated 20th May, 1998, while

issuing notice of the petition, stayed the operation and execution of the award

including the recovery proceedings, if any, initiated by the respondent no.2

workman. The respondent no.2 workman was served with the notice of the writ

petition on 22nd February, 1999 and appeared through counsel who sought time to

file counter affidavit. However, no counter affidavit was filed. In the

circumstances, this court on 28th March, 2000, in the presence of the counsel for

the respondent no.2 workman issued rule in the writ petition and made the interim

order absolute. The respondent no.2 workman still did not file any counter

affidavit. Court notice was issued to the counsel for the petitioner on 10th

November, 2005. However, the same remained unserved. Fresh court notice was

issued to the petitioner on 19th April, 2006. Thereafter again rule notice was

issued to the respondent. However, the respondent remained unserved. The

process issued at his address were returned with the endorsement that there was no

such person residing at that address. Ultimately, vide order dated 31st July, 2009

the respondent no.2 workman was ordered to be served by publication and was

served by publication for 21st October, 2009. However, still none appeared for the

respondent no.2 workman and he was, vide order dated 30th November, 2009

proceeded against ex parte. Inspite of this court having stayed operation of the

award the respondent no.2 workman has not filed any application under Section

17B of the Industrial Disputes Act either. The counsel for the petitioner has been

heard. Though the Labour Court record was summoned but the same has not been

received. The counsel for the petitioner has handed over in the court the copies of

the relevant records of the Labour Court.

2. The claim of the respondent no.2 workman before the Labour Court was

that he was in the employment of the petitioner DDA since 24th March, 1983;

initially he was employed as a beldar on daily wage basis; thereafter he was

assigned the job of non-technical supervisor on daily rated basis and worked so till

25th September, 1987 when his services were terminated by way of refusal of

duties. The petitioner DDA filed a reply to the claim petition of the respondent

no.2 workman. It was not disputed that the respondent no.2 workman was

employed as aforesaid. It was however the stand of the petitioner DDA that the

record of services of the respondent no.2 workman was not satisfactory; on 25th

September, 1987 he had come to office but left without any permission or

intimation; he also took part in political agitation against the then S.E.(Civil

Circle-II) of the petitioner DDA in association with some political parties; he was

associated in criminal attack upon some government officials and his name was

mentioned in the FIR lodged with the police. It was thus contended that the

petitioner DDA was justified in dispensing with the services of the respondent

no.2 workman. From the affidavit by way of evidence filed before the Labour

Court and copy of which has been handed over, it appears that evidence inter alia

to the same effect was led by the petitioner DDA before the Labour Court and a

copy of the FIR was also filed before the Labour Court.

3. The Labour Court has decided the reference in favour of the respondent

no.2 workman merely on the ground that he had completed more than 240 days of

service in a year and thus his services could not be terminated. As far as the plea

of the petitioner DDA of misconduct aforesaid on the part of the respondent no.2

workman is concerned, the award holds that the DDA was obliged to hold

disciplinary proceedings against the workman for misconduct and the same having

admittedly not been held, the respondent no.2 workman was entitled to protection

under Section 25 F of the ID Act.

4. Though this court was inclined to allow this writ petition merely on the

failure of the respondent no.2 workman to contest the same in the last about 12

years since when it has remained pending, inasmuch as without the respondent

no.2 workman coming forward, the award of reinstatement and back wages cannot

be implemented, but the counsel for the petitioner has also contended that the

award is otherwise also liable to be set aside.

5. The counsel for the petitioner has contended that the Labour Court has

erred in not returning any finding on the defence of the petitioner i.e. of the

respondent no.2 workman being not entitled to an order of reinstatement for the

reason of being guilty of gross misconduct to the extent of being also named in an

FIR. It is contended that the petitioner DDA cannot be compelled to retain such

a workman. It is argued that the Labour Court has not returned any finding

whatsoever as to whether the actions aforesaid of the respondent no.2 workman

pleaded and with respect whereto evidence was also led, amounted to misconduct,

to justify termination of his services, or not.

6. It was put to the counsel for the petitioner DDA as to whether, in the

absence of the petitioner DDA having conducted any inquiry whatsoever into the

alleged misconduct of the respondent no.2 workman, the said question could be

gone into in an industrial dispute under Section 10. The counsel for the petitioner

relies on Engineering Laghu Udyog Employees' Union Vs. The Judge, Labour

Court and Industrial Tribunal AIR 2004 SC 4951. In this case also though the

workman was alleged to be guilty of misconduct but no domestic inquiry

proceedings were held. The employer, on industrial dispute being raised by the

workman opted to lead evidence to prove the charges before the Labour Court.

The Labour Court found the charges to have been proved and consequently gave

the award against the workman. It was further held that where an order of

termination is found defective, having been passed contrary to the principles of

natural justice and the employer before the Labour Court has adduced evidence to

prove the charges and the Labour Court comes to the conclusion that the charges

are proved, in such a situation the order of dismissal will relate back to the original

order of termination. In that case also the plea was that the Labour Court can

inquire into the charges only where a departmental inquiry was conducted though

found to be defective by the Labour Court and not where no inquiry whatsoever

was conducted. The Supreme Court however held that even in a case of no

inquiry, it is open to the Labour Court to go into the charges and if satisfied with

respect thereto, to give effect to the order of dismissal. To the same effect is M/s

Amrit Vanaspati Co. Ltd Vs. Khem Chand AIR 2006 SC 2739.

7. In the present case I find that the Labour Court inspite of specific pleading

of the petitioner DDA and evidence led by the petitioner DDA has not returned

any finding whether the charges of the petitioner DDA against the respondent no.2

workman were made out or not. The counsel for the petitioner is right in

contending that the award is liable to be set aside on this ground also. Need is not

felt to remand the matter since the respondent no.2 workman has absented.

8. Resultantly, the petition is allowed. The award dated 25th March, 1997 of

the Labour Court is set aside/quashed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 19th April, 2010 m