Sh. Ram Singh (Deceased) Through ... vs The Presiding Officer, Labour ...
2010 Latest Caselaw 2931 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.4468/1997

%                                             Date of decision: 3rd June, 2010


SH. RAM SINGH
(DECEASED) THROUGH LEGAL REPRESENTATIVES .... Petitioner
                 Through: Mr. Anuj Aggarwal, Advocate


                                        Versus


THE PRESIDING OFFICER, LABOUR COURT
NO.VII, DELHI & ANR.                             ..... Respondents
                     Through: Mr. Anand Nandan, Advocate for R-2.



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 workman by this writ petition impugned the award dated

22nd January, 1997 of the Labour Court holding the removal by the respondent

no.2 DTC of the petitioner workman from service as illegal and unjustified but

granting relief of lump sum compensation of Rs.50,000/- only to the petitioner

workman in lieu of reinstatement and back wages. It is the plea of the petitioner

workman that the Labour Court having found his removal from service to be bad,

the relief of reinstatement with back wages ought to have followed and the relief

granted of compensation of Rs.50,000/- only is illusory and not even adequate

compensation in lieu of the relief of reinstatement and / or back wages.

2. Rule was issued in the writ petition on 7th July, 2000. The petitioner

workman died on 23rd September, 2002 leaving behind four children only as his

legal heirs and of whom two are informed to be still minor. The said legal heirs

of the petitioner workman were substituted in his place and allowed to pursue the

petition.

3. The petitioner workman was employed as a Driver with the respondent

DTC since the year 1982. The services of the petitioner workman were

terminated vide order dated 8th March, 1988 under Clause 15(2)(vi) of the

D.R.T.A. (Conditions of Appointment & Service) Regulations, 1952. The cause

of termination was that the petitioner workman had remained on unauthorized

leave from 1st May, 1986 to 31st March, 1987 and for which charge-sheet dated

21st May, 1987 was served on him. It was the case of the petitioner workman in

the said inquiry proceedings that he could not attend duties due to unavoidable

circumstances beyond his control. It was stated that during the said time his two

year old son had developed blindness and required immediate attention and his

wife was also of unstable mind and in fact ultimately committed suicide on 12th

May, 1987. The petitioner workman thus contended that he could not be held

guilty of misconduct under para 19(h)&(m) of the standing orders issued under

Clause 15(1) of the aforesaid Regulations. The inquiry officer nevertheless

found the petitioner workman guilty of misconduct and the Disciplinary

Authority of the respondent DTC meted out the punishment of discharge from

service.

4. Upon an industrial dispute being raised by the petitioner workman, the

Labour Court found that the respondent DTC had failed to prove that the grounds

given by the petitioner workman were false. It was also found that the petitioner

workman was not represented by any assistant during the inquiry. The inquiry

officer was also not found to have returned any finding on the justification of the

petitioner workman for his absence. It was further held that the admission by the

petitioner workman of his absence was no admission of habitual absence or

habitual negligence of duties or of lack of interest in the respondents work and

which under the aforesaid Regulations of DTC was a misconduct punishable

with removal from service. It was held that the Disciplinary Authority was not

right in meeting out the punishment of removal / dismissal from service.

5. Even though the said finding of the Labour Court is against the respondent

DTC but the respondent DTC has chosen not to challenge the same and allowed

it to attain finality. Though a counter affidavit to this writ petition has been filed

but even therein no challenge to the award or any aspect of it has been made.

The counsel for the respondent DTC of course has urged that subsequent to the

award aforesaid, the Supreme Court in DTC Vs. Sardar Singh 2004 (7) SCC 574

has held that when an employee of DTC absents from duty without sanctioned

leave, it prima facie shows lack of interest in work and habitual absence is a

factor which establishes lack of interest in work. Reliance in this regard is also

placed on judgment dated 25th May, 2007 of the Division Bench of this Court in

LPA No.2290/2006 titled Dharam Pal Vs. DTC which follows the judgment in

Sardar Singh.

6. The counsel for the petitioner in support of the proposition that upon

finding of termination of services being illegal, the relief of reinstatement

must follow, relies on the recent judgment of the Supreme Court in Harjinder

Singh Vs. Punjab State Warehousing Corporation MANU/SC/0060/2010.

However in view of the demise of the petitioner, the question of reinstatement

does not arise. The counsel for the petitioner however contends that full back

wages ought to have been awarded. Reliance in this regard is placed on Nicks

(India) Tools Vs. Ram Surat AIR 2004 SC 4348, Surendra Kumar Verma

Vs. CGIT (1980) 4 SCC 443 and on Novartis India Ltd. Vs. State of West

Bengal 2009-II-LLJ-9 (SC).

7. On inquiry as to what should be the quantum of compensation in lieu of

reinstatement and/or reinstatement and back wages, the counsel for the

petitioner invites attention to (i) Management of Aurofood Pvt. Ltd. Vs. S.

Rajulu (2008) II LLJ 1061 SC where compensation of Rs.10 lacs in lieu of

reinstatement was granted; (ii) Rajasthan Lalit Kala Academy Vs. Radhey

Shyam (2008) III LLJ 562 SC where compensation of Rs.3 lacs in lieu of

reinstatement and back wages was granted and (iii) Talwara Coop. Credit &

Service Society Ltd. Vs. Sushil Kumar (2009) I LLJ 326 SC where

compensation of Rs.2 lacs in lieu of reinstatement and back wages was

granted.

8. However in none of the aforesaid judgments is found any basis or

formula on which the such compensation is to be ascertained. In Management

of Aurofood Pvt. Ltd. (supra) the management had of its own offered a lump

sum compensation of Rs.5 lacs which was not acceptable to the workman and

which the Supreme Court enhanced to Rs.10 lacs. While awarding

compensation of Rs.2 lacs in Talwara Coop. Credit & Service Society Ltd.

(supra) the factors of the workman having not worked and the management

being a sick unit and not having the capacity to pay were taken into

consideration.

9. During the course of the hearing, it was also enquired as to whether the

compensation awarded by the Labour Court of Rs.50,000/- had been paid.

Though neither counsel had information in this regard but the counsel for the

respondent no.2 DTC has placed before this Court the minutes of the

Mediation Committee of the DTC of December, 2008 and November, 2009. In

the minutes of December, 2008, the said Committee sanctioned resolution of

dispute with the petitioner by reinstating the petitioner subject to his not being

paid any back wages from the date of termination and till the date of

reinstatement and subject to his refunding with interest the gratuity and the

management's share of C.P. Fund received by the petitioner. However,

subsequently on being informed that the petitioner had already died, in the

minutes of November, 2009 the Committee provided for complying with the

award by payment of Rs.50,000/- to the legal heirs of the petitioner. From the

same it transpires that the said sum of Rs.50,000/- also has not been paid till

now.

10. The sum of Rs.50,000/- awarded 13 years back on 22nd January, 1997

and which has not been paid till date, itself, even if deposited in Government

securities, would have a value of over Rs.2 lacs today.

11. In my opinion compensation in lieu of back wages and reinstatement

should represent the saving that accrues to the employer/management by not

having to pay the back wages and not having to reinstate the workman. The

award was made after 10 years of termination of services of the petitioner

workman. There was no evidence of the petitioner workman being employed

elsewhere. If the award had been for reinstatement with back wages, the

respondent no.2 DTC would have been liable to pay back wages for full 10

years during which the dispute remained pending and would also have been

liable to pay the future emoluments to the petitioner from the award in 1997

till his demise in 2002. In the interregnum the scheme of family pension had

also come into force in the respondent no.2 DTC and the respondent no.2

DTC on demise of the petitioner would have become liable to pay pension

also. Considering all the said factors, it is deemed expedient to enhance the

lump sum compensation from the present date value as aforesaid of Rs.2 lacs

to Rs.4 lacs.

12. However since two of the legal representatives of the petitioner are

stated to be minors, it is not deemed expedient to direct release of the entire

amount to them immediately. It is deemed expedient to entail the services of

the Delhi Legal Services Authority which shall, after meeting the children of

the deceased petitioner and assessing their needs and requirements, make

suitable provision for release/payment/investment of the said amounts.

13. The writ petition accordingly succeeds and the Rule issued earlier is

made absolute. The lump sum compensation awarded by the Labour Court in

lieu of reinstatement and back wages is enhanced to Rs.4 lacs as aforesaid.

The respondent no.2 DTC is directed to deposit the said sum of Rs.4 lacs with

the Delhi Legal Services Authority within eight weeks of today failing which

the same shall also incur simple interest at 9% per annum. The legal

representatives of the deceased petitioner to thereafter approach the Delhi

Legal Services Authority for release/payment/investment of the amount in

terms of the aforesaid. The legal representatives of the petitioner are also

awarded costs of this writ petition of Rs.15,000/- payable along with the

amount aforesaid.

The writ petition is disposed of.

RAJIV SAHAI ENDLAW (JUDGE) 3rd June, 2010 gsr/pp..