National Cooperative Union Of ... vs Presiding Officer, Industrial ...
2010 Latest Caselaw 1166 Del

                     *IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                  WP(C) No.2467/2003

 %                                            Date of decision: 2nd March , 2010

NATIONAL COOPERATIVE UNION OF INDIA                                          ..... Petitioner
                 Through: Mr. Anil Amrit, Advocate.

                                              Versus

PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL No.III & ORS.                                                     ..... Respondents
                    Through: None.


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 seeks quashing of the award dated 5th February, 2002 of the Industrial

Tribunal holding the termination by the petitioner of the services of the respondent No.3

workman namely Shri Vijay Kumar to be illegal and unjustified and directing the petitioner

to reinstate the said respondent with full back wages at the rate of last drawn salary and

continuity in service.

2. This Court vide ex parte order dated 8th April, 2003, while issuing notice of the

petition, stayed the operation of the award on the condition of the petitioner depositing 50%

of the back wages in this Court and which amount was ordered to be kept in a fixed deposit.

A sum of Rs.49,413.25p is stated to have been so deposited by the petitioner. The

respondent No.3 workman on being served with the notice of the petition appeared before

this Court through advocate and also filed a counter affidavit. However, on 11th April, 2005

the counsel for the respondent No.3 workman informed this Court that the respondent No.3

had not been contacting him. Thereafter the counsel for the respondent No.3 workman

appeared but again stopped appearing w.e.f. 27th July, 2006. A notice of default was in the

circumstances ordered to be issued to the counsel for the respondent No.3 workman on 12th

January, 2007. Inspite of service of the same none appeared for the respondent No.3

workman thereafter also and ultimately on 3rd December, 2009 this petition was set down

for ex parte hearing. None has appeared for the respondent workman today also. The

counsel for the petitioner has been heard.

3. The respondent No.3 workman was employed by the petitioner as a typist w.e.f.

February, 1982 and his services were terminated on 7th November, 1983. The only plea of

the petitioner is that the respondent No.3 workman was a daily wager and as per the terms of

his employment also his services were terminable without any notice. The Labour Court has

found that the petitioner had failed to show that the services were for a particular period

only or for a particular piece of work and on the contrary it was found that the respondent

No.3 workman was employed against a job of a regular nature. In the circumstances, the

relief of back wages and reinstatement was granted.

4. A perusal of the petition filed before this Court would show that the challenge by the

petitioner is primarily to the order of reinstatement. Though generally the relief of quashing

and setting aside of the entire award has been claimed but the grounds raised in the

memorandum of the petition are that reinstatement is not the inevitable consequence of

quashing of an order of termination and compensation can be awarded in lieu of

reinstatement and back wages.

5. Moreover, the respondent No.3 workman having failed to contest these proceedings,

he does not appear to be interested in his reinstatement. The award, in so far as granting the

relief of reinstatement to the respondent No.3 workman is thus liable to be set aside.

6. The petition preferred before this Court does not urge any ground for setting aside of

the award for back wages. The 50% of the back wages have already been deposited in this

Court and kept in a fixed deposit. The respondent No.3 workman is entitled not only to the

said amount but also to remaining amount of back wages and that part of the award does not

call for any interference. The only question which remains is as to what compensation is to

be given to the respondent No.3 workman in lieu of reinstatement. Considering the fact that

the respondent No.3 workman was last working at Rs.15/- per day and has not been in the

employment of the petitioner now for the last nearly 27 years and further considering the

facts that the relief of back wages has already been granted to the respondent No.3

workman, without working for the petitioner, I deem compensation in lieu of reinstatement

of Rs.25,000/- to be sufficient.

7. The petition therefore succeeds in part only. The award in so far as directing the

petitioner to reinstate the respondent No.3 workman is set aside and in lieu thereof

compensation of Rs.25,000/- is awarded to the respondent No.3 workman. The amount

deposited by the petitioner in this Court pursuant to the interim orders be kept in a fixed

deposit till withdrawn by the respondent No.3 workman.

The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 2nd MARCH, 2010 pp