Chief Engg. (I & F), Flood Control ... vs Kuldip Singh & Anr
2010 Latest Caselaw 1135 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.1413/1997

 %                                      Date of decision: 26th February, 2010

CHIEF ENGG. (I & F), FLOOD CONTROL WING
DELHI ADMINISTRATION                              ..... Petitioner
               Through: Ms. Zubeda Begum with Ms. Sana Ansari,
                        Advocates
                                        Versus
KULDIP SINGH & ANR.                                         ..... Respondents
                       Through: Mr. Varun Prasad & Mr. Harish Sharma,
                                Advocates

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. This writ petition takes exception to the award dated 18 th September,

1996 of the Labour Court holding the services of the respondent / workman to

have been illegally terminated by the petitioner and directing the petitioner to

reinstate the respondent with full back wages and continuity of service. This

Court while issuing notice of the petition, vide ex parte order dated 3rd April,

1997 stayed the operation of the award. The said order was subsequently

made absolute during the pendency of the petition vide order dated 18 th

November, 1999.

2. The respondent claims that he was engaged initially w.e.f. 1 st July, 1986

as beldar on muster roll and was posted at Peeragarhi upto 18th November,

1988 in the Flood Control Division; that he thus completed more than 240

days of service within the meaning of Section 25 B of the Industrial Disputes

Act; that he reported for work on 19th November, 1988 and onwards but was

refused work and was verbally told that his services have been terminated

w.e.f. 19th November, 1988. Alleging the said termination to be violative of

Section 25 G, E & H, he raised a dispute and reference was made to the

following effect:-

"Whether the services of Sh. Kuldip Singh have been terminated illegally and /or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. The petitioner filed a reply to the statement of claim of the respondent.

In the said reply, it was not disputed that the petitioner was initially appointed

on 1st July, 1986 as Beldar; however, it was contended that this was purely on

a temporary basis on daily wages and as per the terms of employment the

same was terminable at any time without prior notice; the appointment was

done afresh every month and on different works as per requirement. The

petitioner contended that the respondent did not complete 240 days service in

a year. It was stated that from July, 1986 to March, 1987 he had worked for

228 days and from April, 1987 to March, 1988 he had worked for 228 days

and from April, 1988 to 18th November, 1988 he had worked for 157 days.

The petitioner also pleaded that the respondent had remained absent from duty

w.e.f. 19th November, 1988 for about nine months and came forward for re-

appointment on 4th August, 1989, only giving reasons for absence as illness

and due to his father‟s accident. However the petitioner, after filing the reply

before the Labour Court, stopped appearing in the proceedings and was

proceeded against ex parte and neither cross examined the witnesses of the

respondent nor lead any evidence.

4. In the aforesaid state of affairs, the Presiding Officer of the Labour

Court has held that the respondent/workman had completed more than 240

days of service in the years 1987 & 1988 and accordingly his services could

not be terminated without notice.

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

erred in believing the ex parte evidence of the respondent alone to the effect

that he had worked for more than 240 days in a year; she contends that the

Labour Court did not make any independent enquiry in this regard and the

award is thus liable to be set aside. It is also contended that inspite of the plea

of the petitioner in its reply that it is the respondent who had stopped

approaching for work w.e.f. 19th November, 1988, the Labour Court has not

returned any finding on that aspect of the matter. On being questioned as to

what other evidence the respondent could have lead to prove his employment

continuously for 240 days, the counsel states that the respondent could have

examined other witnesses and / or summoned the muster roll of the petitioner.

It is also argued that the respondent has not named the official of the petitioner

who is alleged to have been approached w.e.f. 19 th November, 1988 and / or

who refused employment to the respondent. It is contended that if the

respondent had been refused employment on 19 th November, 1988 as alleged,

he would have raised the dispute immediately and would not have waited for

9-10 months. It is further the case of the petitioner that the respondent was a

daily wager and not entitled to any notice of termination. It is contended that

the nature of work for which the respondent was engaged was purely of a

temporary nature i.e. of cleaning of drains etc. during monsoon season and the

services of the respondent were not such as required throughout the year. It is

contended that only if the work for which a workman is engaged continuously

for 240 days is of a perennial nature, than it is the policy/law that rather than

keeping the workman on a daily/temporary basis, his services should be

regularized and he should not be terminated. The counsel has during the

course of hearing also handed over a copy of the muster roll dated 28 th April,

1987 containing the name of the respondent at serial no.9 and stated to be

bearing the signatures of the respondent also and which contains the type

written material "Accepted a purely temporary appointment on day-to-day

basis. Terminable at any time without any notice, on the daily wages of each

of the work". It is further argued that the Labour Court has proceeded on the

basis that on reinstatement the order for 100% back wages was automatic. It

is argued that such order is contrary to the principle of „no work no pay‟ and

the services of the respondent as of today are not needed by the petitioner.

Reliance is also placed on the order dated 14th January, 2010 of the Division

Bench of this Court in LPA No.2030/2006 titled Sh. Shyam Babu Vs.

Government of NCT of Delhi where in similar circumstances, the workman

who had been engaged on a temporary basis for two years was granted only

the relief of Rs.1,00,000/- by way of compensation in lieu of reinstatement.

6. I have enquired from the counsel for the petitioner as to whether the

petitioner took any steps for having the ex parte award set aside. The answer

is in the negative. I have also enquired whether the respondent would be in

possession of any document which would have shown the duration of his

employment with the petitioner. No concrete answer to the said question also

is given. I am, in the circumstances, unable to accept the contention of the

petitioner that the Labour Court proceeded to make an award without proper

enquiry or material. In this regard, it is also significant that the petitioner in

the reply filed before the Labour Court itself had not really disputed the dates

of employment as stated by the respondent/workman. The difference in the

dates and the number of days for which the respondent was employed, pleaded

by the petitioner and the respondent is on account of the petitioner in its

petition having not included Sundays and other holidays and the respondent

having done so. The counsel for the respondent has contended that in

computation of 240 days the intervening holidays are also to be counted. This

contention is found to be correct as per the judgment in Workmen of

American Express International Banking Corporation Vs. Management of

American Express International Banking Corporation (1985) 4 SCC 71. The

counsel has also contended that it is not even a ground taken by the petitioner that

Sundays and intervening holidays are not to be counted in computing the

period of 240 days as aforesaid.

7. Thus it will be seen that the award, inasmuch as returning the factual

finding of the respondent having been employed by the petitioner for 240 days

in the preceding year, cannot be faulted with. Even otherwise, the same is a

finding of fact and this Court in the writ jurisdiction will not interfere with the

said finding of fact particularly when the said finding is not shown to be

perverse in any manner whatsoever. Similarly, the onus to prove that the

respondent, after 18th November, 1988 had stopped approaching for work was

on the petitioner and which the petitioner failed to discharge.

8. Once the finding of fact is to be accepted, axiomatically the finding of

the Labour Court of the employment of the respondent having been illegally

terminated cannot also be faulted with.

9. The question which then arises is as to what should be relief in such

circumstances and whether this Court should in the exercise of writ

jurisdiction interfere in the relief granted by the Labour Court.

10. The counsel for the respondent relies upon the recent dicta of the

Supreme Court in Harjinder Singh Vs. Punjab State Warehousing

Corporation MANU/SC/0060/2010 where a bench of two judges of the

Supreme Court by reference to the earlier judgments of three judge benches of

the Supreme Court has held that the courts are to ensure that a workman who

has not been found guilty cannot be deprived of what he is entitled to get -

obviously when a workman has been illegally deprived of his device then that

is misconduct on the part of the employer and employer cannot possibly be

permitted to deprive a person of what is due to him; where large number of

people are unemployed and it is extremely difficult to find employment, an

employee who is discharged from service might have to remain without means

of subsistence for a considerably long time and damages in the shape of wages

for a certain period may not be an adequate compensation to the employee for

non-employment. In other words, damages would be a poor substitute for

reinstatement. The said judgment further noticed that though of late, there has

been a visible shift in the courts‟ approach in dealing with the cases involving

the interpretation of social welfare legislations but the Supreme Court held

that the approach of the courts must be compatible with the constitutional

philosophy of which the Directive Principles of State Policy constitute an

integral part and justice due to the workman should not be denied by

entertaining specious and untenable grounds put forward by the employer.

Accordingly, the order of the Labour Court of reinstatement with back wages

was restored and that of the High Court in writ petition was set aside. Though

the counsel for the respondent has also handed over compilations of a large

number of other judgments including on the aspect of Section 2(oo) (bb) of

the I.D. Act but in view of the trend over the years having been noticed in

recent dicta in Harjinder Singh (supra), it is not deemed necessary to burden

this judgment with a discussion of the same.

11. I find that another bench of two Judges of the Supreme Court also

recently in Jagbir Singh v. Haryana State Agriculture Marketing Board AIR

2009 SC 3004 has however awarded compensation in lieu of reinstatement.

12. The question which thus arises for consideration by this Court is as to

which judgment of the aforesaid two of the Supreme Court to follow in the

present case. To determine the same, I have perused the facts of each of the

two cases minutely. In Harjinder Singh (supra), the workman was in regular

employment and whose designation during the course of employment was

changed from work charge Motor Mate to Work Munshi and who had also

been given an increment. He was continued in service even beyond the tenure

specified in the order passed by the officials of the employer from time to time

and was thereafter issued one months notice of termination by way of

retrenchment. The plea of the employer in that case was that the projects at

which the workman was employed had been completed. Per contra, in Jagbir

Singh (supra) the workman was engaged as a daily wager and was being paid

consolidated wages during his employment. The facts of Jagbir Singh

(supra) are thus more akin to the facts of the present case. It was further held

that "justice is the buzzword in the matter of adjudication under the Industrial

Disputes Act; it would be wholly improper on the part of the superior courts to

make them apply the cold letter of the statutes to act mechanically; rendition

of justice would bring within its purview giving a person what is due to him

and not what can be given to him in law. A person is not entitled to get

something only because it would be lawful to do so. If that principle is

applied, the functions of an Industrial Court shall lose much of their

significance". It was emphasized that while granting relief, application of

mind on the part of the Industrial Court is imperative and reinstatement with

full back wages cannot be the natural consequence and cannot be granted

automatically only because it would be lawful to do so. It was held that

several factors have to be considered, a couple of them being as to whether

appointment of the workman had been made in terms of statute/rules and the

delay in raising the industrial dispute. The Supreme Court in that case

considering the factors of the period during which the services were rendered,

the fact that the respondent had stopped its operation for which the workman

was employed and considering the long time which had lapsed since the

service had been terminated held the relief of reinstatement to be not

appropriate. It was observed that the nature of appointment, the period of

appointment, the availability of the job, etc. should weigh with the court for

determination of such an issue. It was further held that a superior authority, as

the employer in that case was, is obligated to make recruitments only upon

compliance with the equality clause contained in Articles 14 and 16 of the

Constitution of India and any appointment in violation of the said

constitutional scheme as also the statutory recruitment rules, if any, would be

void. It was also not found to be in public interest to order reinstatement after

a long lapse of time. Yet other factor which was found to be relevant was,

whether in making the initial employment, the statutory rule, if any, had been

complied with and whether the workman had obtained some other

employment on the date of termination or passing of the award. It was further

held that due to some exigency of work, although recruitment on daily wages

or on an ad hoc basis was permissible, but by reason thereof an employee

cannot claim any right to be permanently absorbed in service or made

permanent in absence of any statute or statutory rules; merely because an

employee has completed 240 days of work in a year preceding the date of

retrenchment, the same would not mean that his services were liable to be

regularised. It was held that the courts have distinguished between a daily

wager who does not hold a post and a permanent employee. In view of all the

said factors in that case, compensation in lieu of damages was awarded.

13. In the present case also the employment of the petitioner was as a daily

wager and was on an ad hoc basis. The work for which the respondent was

employed was also of a temporary / seasonal and not a perennial nature. I

may also notice that the respondent in the present case did not even oppose the

application for interim relief of stay of the award. The respondent did not

apply under Section 17 B of the Act also till the year 2004 when an

application was filed but was subsequently withdrawn on 2nd March, 2005.

No application thereafter has been filed. All this leads me to hold that in the

facts of the present case, reinstatement is not the appropriate remedy.

However, the termination of employment of the respondent having been found

to be illegal, he will definitely have to be compensated therefor.

14. This Court in Autocentre Workshop v. Delhi Administration 125

(2005) DLT 675 has held that the Court under Article 226 of the Constitution

ought to consider the interest of both the parties and should counter weigh the

conflicting rival claims without paying undue weightage to either the

workmen or the employer. It was held that compensation in lieu of

reinstatement has to reflect two factors viz. the amount payable as back wages

and the amount payable in lieu of reinstatement which may be denied due to

myriad factors.

15. Seen in this light, I feel that leave apart the award for payment of back

wages, even if an order under Section 17 B of the Act at the rate of last paid

wages from the date of the award till now is made, a sum of Rs.3,00,000/-

(approximately) would be due to the respondent. The back wages for

approximately seven years @ Rs.1590/- per month as disclosed from the

document handed by the petitioner, would also be in the amount of

Rs.1,35,000/-. In the course of hearing, it was informed that the respondent is

now about 50 years of age and would thus have several years of service

remaining. If he was to be reinstated, the petitioner would also have the

burden of his family pension etc. Per contra, it cannot be lost sight of that the

respondent has not worked for the petitioner and in all likelihood has been

employed elsewhere. Considering all these things, I feel that compensation in

the sum of Rs.4,00,000/- would be equitable in lieu of reinstatement and back

wages.

16. However, it is not deemed appropriate to order the release of the said

sum of Rs.4,00,000/- to the respondent / workman immediately. It is often

found that such lump sum payments do not reach the intended beneficiary.

Since the respondent is found to have gotten by despite his termination from

the employment of the petitioner in the last about 20 years, it is felt that he has

no immediate need of the said sum. It is deemed expedient to have the said

sum deposited for the benefit of the respondent and be released to the

respondent either upon him attaining the age of 58 years or earlier in the event

of any other family exigency. Accordingly, while disposing of this petition by

modifying the award from that of reinstatement with back wages to that for

compensation in the aforesaid sum, the petitioner is directed to deposit the

said amount in this Court within a period of four weeks from today. Upon

deposit of the said amount, the same be kept in a fixed deposit having

maximum interest initially for a period of three years. The respondent/

workman shall be entitled to apply to this Court for release of the said amount

before that period and or release of interest earned on the said sum upon

showing sufficient cause therefor.

RAJIV SAHAI ENDLAW (JUDGE) February 26th, 2010 gsr