New Delhi Municipal Council vs Shri Dori Lal
2010 Latest Caselaw 31 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C.) No.13143/2005

%                  Date of Decision: 07th JANUARY, 2010


#     NEW DELHI MUNICIPAL COUNCIL
                                                            .....PETITIONER

!                  Through:   Mr. P.C. Sen, Advocate.

                                    VERSUS

$     SHRI DORI LAL
                                                          .....RESPONDENT

^                  Through:   Mr. K. Venkatraman, 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 NDMC is the petitioner in this writ petition. It has filed the

present petition for setting aside the industrial award dated 21.05.2004

in I.D. No. 139/1995 granting full back wages from the date of

termination till the date of the award in favour of the respondent

workman.

2 Briefly stated the facts of the case relevant for the disposal of this

writ petition are that the petitioner had on or around 1991 had restarted

its training-cum-production centre for manufacturing of file covers,

wrappers and file boards at Bapu Samaj Sewa Kendra, Community Hall,

Panchkuyian Road, New Delhi for which decision was taken by the

petitioner vide Resolution No. 32 dated 28.09.1990. The scheme was

started at the petitioner's above referred Kendra with an object of giving

training to the un-employed lower categories and to supply the maximum

production of file covers & wrappers for the municipality.

3 Pursuant to decision taken by the petitioner to restart its training-

cum-production centre for manufacturing of file covers, wrappers and file

boards vide Resolution No. 32 dated 28.09.1990, the petitioner appointed

two persons namely the respondent Mr. Dori Lal as Supervisor and Mr Raj

Kumar as helper w.e.f. 01.04.1991 and 15.04.1991 respectively at a fixed

honorarium of Rs.1,000/- per month and Rs.750/- per month respectively

for a period of three months in the first instance. The honorarium of both

these persons, at their request, was later on enhanced to Rs.1,200/- per

month and Rs.1,000/- per month respectively w.e.f. 19.04.1993. The

tenure of appointment of both the above persons at the Centre was

renewed from time to time, each time for a fixed term ranging between

three to six months till the time the Centre was finally closed down by the

petitioner w.e.f. 31.03.1994. The last extension that was given by the

petitioner to the respondent Mr. Dori Lal was vide appointment letter

dated 20.10.1993 (Annexure MW-1/7 at page 23 of the paper book) which

is extracted below:-

"BAPU SAMAJ SEWA KENDRA COMMUNITY HALL, P.K. ROAD, NEW DELHI

No.197-A/CH/69-A/CH Dated 20.10.1993

OFFICE ORDER

In continuation of O.O. No.197-A/CH/42/CH dated 17.06.1993 and with the approval of the Secretary, the term of temporary posts of one supervisor and one Helper for File cover production, Cummunity Hall, P.K. Road, New Delhi is extended for another period of six months w.e.f. 01.10.1993 to 31.03.1994. The term of appointment of the following officials is also extended for the period ending 31.03.1994. Further the rate of fixed honorarium to the following is as under:-

      Sl. No.      Name and Designation             Rate of fixed
                                                   honorarium

     1            Sh. Dori Lal, Supervisor         Rs.1,200/- p.m.
     2            Sh. Diwakar Garg, Helper         Rs.750/- p.m.

           The appointments       are   purely   temporary   and     can   be
     terminated earlier also.
                                                                      Sd/-
                                                       DY. SECY. (HEALTH)

     Copy to :-   1.      Incharge (Community Hall)
                  2.      Accounts Branch
                  3.      Individual"


4     The Centre for which the respondent was appointed by the

petitioner was closed down w.e.f. 31.03.1994 and consequently the

services of the respondent workman came to an end with the closure of

the Centre w.e.f. 31.03.1994. Aggrieved therefore, the respondent

workman raised an industrial dispute which was referred by the

appropriate Government in the Government of NCT of Delhi to the Labour

Court for adjudication.

5 The Labour Court vide its impugned award, upon consideration of

the evidence produced by the parties before it, recorded a finding of fact

that admittedly the Centre for which the respondent workman was

appointed had been closed down w.e.f. 31.03.1994. Para-10 of the

impugned award in this regard is relevant and is extracted below:-

"In my considered view, when the workman has continuously worked w.e.f. 01.04.1991 to 31.03.1994, he is entitled to get protection of Section 25-F of the I.D. Act and his services should not have been terminated without complying with the provisions of the Act. The plea of the management that the unit in which the workman was employed has been closed stands unrebutted, as in the rejoinder the workman has not disputed this."

6 Though the Labour Court has returned a finding of fact that the

Centre for which the respondent workman was appointed had been

closed down w.e.f. the date of his termination i.e. 31.03.1994, the Court

below has granted full back wages to the respondent workman from the

date of his termination till the date of award. It is aggrieved from this

relief given by the court below to the respondent workman, the petitioner

has filed the present writ petition seeking setting aside of the impugned

award.

7 Mr. K. Venkatraman learned counsel appearing on behalf of the

respondent workman has argued that since the respondent was

appointed by the petitioner in a temporary capacity and according to

him, in view of provisions contained in Section 25-F of the Industrial

Disputes Act, 1947, even a temporary workman is entitled to have a

notice of one month for termination of his services. The argument of Mr.

Venkatraman is that since the services of the respondent workman were

terminated by the petitioner w.e.f. 31.03.1994 without serving him any

notice of termination, the termination is bad in law and, therefore, the

Labour Court has rightly awarded full back wages to the respondent

workman from the date of termination till the date of award.

8 Per contra, Mr. P.C. Sen learned counsel appearing on behalf of the

petitioner has argued that the appointment of the respondent workman

was a tenure appointment and came to an end with the expiry of the

term for which he was appointed. He has referred and relied upon the

appointment letters issued by the petitioner to the respondent workman

from time to time, specimen copies whereof are at pages 16 to 23A of

the paper book to show that the appointment of the respondent workman

was for a fixed term and had a fixed honorarium. Mr. Sen has relied upon

the provisions contained in Section 2(oo)(bb) of the Industrial Disputes

Act, 1947 to contend that no notice for termination of services of the

respondent workman was required to be given as his term of

appointment had come to an end on the date the Centre for which he

was appointed was closed. Section 2(oo)(bb) of the Industrial Disputes

Act, 1947 reads as under:-

"Section 2(oo)(bb):-

'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise then as a punishment inflicted by way of disciplinary action but does not include-

(a)XXXX

(b)XXXX

(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or}

(c) XXXX"

9 It is apparent on a plain reading of the provisions contained in

Section 2(oo)(bb) of the Act extracted above that no notice was required

to be given by the petitioner to the respondent workman for termination

of his services on the closure of its Centre as the term for which he was

appointed had come to an end on that day. The terms of appointment

contained in the appointment letter Ex. MW-1/7 clearly put the

respondent workman to a notice that his contract of employment with the

petitioner would come to an end on 31.03.1994 and therefore, he was not

entitled to any further notice from the petitioner in this regard. The non-

renewal of tenure employment of the respondent workman by the

petitioner corporation does not fall within the ambit of 'retrenchment'

provided in Section 2(oo) of the Industrial Disputes Act, 1947. There is a

categorical finding in the impugned award which has not been challenged

by the respondent workman that the Centre for which he was appointed

was closed down w.e.f. the date of his termination i.e. 31.03.1994. In that

view of the matter, this Court is of the opinion that the court below has

committed a grave error in granting back wages from the date of

termination of the respondent till the date of award in favour of the

respondent workman. The award to that extent suffers from perversity

and is liable to be set aside.

10 In view of the foregoing, the impugned award to the extent it

grants full back wages from the date of termination till the date of award

in favour of the respondent workman is concerned, is hereby set aside.

This writ petition is allowed leaving the parties to bear their own costs.

JANUARY 07, 2010                                       S.N.AGGARWAL, J
'A'