The Mgt. Of Director (Garden) Dda vs P.O. Labour Court-V & Anr.
2010 Latest Caselaw 1188 Del

                  *IN THE HIGH COURT OF DELHI AT NEW DELHI
+                            WP(C) No.2933/1992
 %                                      Date of decision: 3rd March , 2010
THE MGT. OF DIRECTOR (GARDEN) DDA              ..... Petitioner
                 Through: Mr. Arun Birbal, Advocate
                         Versus
P.O. LABOUR COURT-V & ANR.                    ..... Respondents
                 Through: Mr. Gajendra Giri & Ms. Seema Joshi,
                          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. The petitioner DDA seeks quashing of ex parte award dated 26th November, 1988 of the Labour Court of reinstatement of the respondent No.2 workman with full back wages at the rate of last drawn wages and/or minimum wages whichever is higher; alternatively, the relief of setting aside of the order dated 25th March, 1992 of the Labour Court dismissing the application of the petitioner DDA for setting aside of the ex parte award and permission to contest the claim of the respondent workman before the Labour Court is sought. Vide ex parte order dated 25th May, 1993 in these proceedings, the operation of the award was stayed. However, subsequently on 22nd July, 1993 it was informed that the back wages up to the date of the award only had been paid by the petitioner DDA to the respondent workman. This Court directed the petitioner DDA to deposit the balance amount due upto date in the Labour Court and permitted the respondent workman to withdraw the same on furnishing security to the satisfaction of

the Labour Court. Subsequently, on 24th September, 1993 rule was issued on the petition. The subsequent orders show that the petitioner DDA thereafter also continued to deposit the amounts in accordance with the award with the Labour Court. Thus the minimum wages have been paid to the respondent workman during the pendency of the petition before this Court in terms of the award, even though the respondent workman has not worked for the petitioner DDA.

2. The counsel for the petitioner DDA has contended :-

(i) That the Labour Court erred in dismissing the application of the petitioner DDA for setting aside of the ex parte award. It is contended that the said application was dismissed merely on the ground that the Labour Court had become functus officio after 30 days of the publication of the award and thus not competent to entertain the application under Section 17 of the I.D. Act for setting aside of the award.

(ii) It is contended that even if this Court were to hold that the Labour Court because of Section 17 of the I.D. Act was not competent to set aside the order for the reason of 30 days having elapsed from publication thereof, this Court in the exercise of its constitutional powers can set aside the award.

(iii) That the present is not a fit case for reinstatement. The respondent workman was a casual worker and has worked for the petitioner DDA for 15 months only and was not even having the requisite qualifications and was not appointed as per the statutory rules for recruitment for the post to which he has been reinstated. It is further contended that more than 30 years have lapsed since the respondent workman has last worked for the petitioner DDA and considering all these facts reinstatement ought not to have been granted.

(iv) Lastly, it is contended that in any case no case for grant of back wages was made out.

3. The counsel for the petitioner has fairly informed that there are conflicting decisions of the Courts on the power of the Labour Court to set aside the ex parte award after 30 days of the publication of the award. The counsel has placed before this Court:-

(i) Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal AIR 1981 SC 606, it is informed that in this case, the application was filed even prior to the publication of the award but the observations suggest that the Labour Court has power to set aside ex parte award at any time when sufficient cause for absence is shown.

(ii) Satnam Verma Vs. Union of India AIR 1985 SC 294, it is informed that in this case also the application for setting aside was made before the publication of the award. This judgment also holds that the Labour Court has power to set aside the ex parte award.

(iii) Anil Sood Vs. S.K. Saruaria 1997 (1) SCT 652 where the Division Bench of this Court held that the application for setting aside of the ex parte award is entertainable by the Labour Court within 30 days of publication only.

(iv) Anil Sood v. Presiding Officer (2001) 10 SCC 534 where the Supreme Court reversed the judgment of the Division Bench of this Court and set aside the ex parte award, on an application even after 30 days of publication of the award. The counsel however points out that the said relief was granted on concession.

(v) M/s Sangham Tape Company Vs. Hans Raj AIR 2004 SC 4776 where the Supreme Court held that the Labour Court has no power to set aside the ex parte award after 30 days of publication.

(vi) Radhakrishna Mani Tripathi Vs. L.H. Patel 2009 (2) SCC 81 where the Supreme Court without reference to M/s Sangham Tape Company (supra) held on the basis of the earlier judgments that the Labour Court is competent to entertain an application for setting aside of the ex parte award even after 30 days of publication.

4. I am however otherwise not inclined to, after 22 years, remand the matter to the Labour Court by setting aside the ex parte award. The parties have been litigating since the year 1984 and this Court would not be doing justice by at this stage directing the parties to start de novo. Thus need is not felt to deal with the aforesaid conflicting judgments.

5. In the present case, the respondent workman had admittedly worked for over 240 days, in fact for 15 months with the petitioner DDA. The plea of the petitioner DDA is that the respondent workman had abandoned the work and raised the dispute as an afterthought. However, the fact remains that even if the respondent workman had so abandoned the employment of the petitioner DDA, the petitioner DDA did not treat the same as a misconduct on the part of the respondent workman and did not initiate any inquiry or impose any penalty on the respondent workman on this ground. The respondent workman otherwise by having continuously worked for 15 months had acquired the status of an employee and his case could not have been dealt with as a case of mere abandonment. No fault can thus be found with the award in so far as holding the termination of employment of the respondent workman to be bad.

6. However, I concur with the counsel for the petitioner that in the facts of the present case, no case for reinstatement is made out. The petitioner in this regard relies on (i) Jagbir Singh Vs. Haryana State Agriculture Marketing Board 2009 (9) JT 396 (ii) Babu Ram Sagar Vs. The Presiding Officer 2009 (3) AD (Delhi) 254 (DB) (iii) Ashok Kumar Vs. MCD 2008

LIC 1186 & (iv) Pramod Kumar Vs. Presiding Officer 2006 LIC 76. On the aspect of back wages, reliance is placed on J.K. Synthetics Ltd. Vs. K.P. Agrawal AIR 2007 SC (Supp) 637.

7. However, the next question which arises is as to what compensation in lieu of reinstatement ought to be awarded. The counsel for the petitioner contends that the respondent workman has already been receiving minimum wages in terms of the award from the petitioner DDA right since 1984 till today without doing any work whatsoever for the petitioner DDA. It is stated that a sum of approximately Rs.3,00,000/- has been so received by the respondent workman from the petitioner DDA.

8. Per contra, the counsel for the respondent workman contends that the respondent workman was not a casual worker but had been selected on the basis of interview; that the petitioner DDA had regularized all the casual workers save the respondent workman. He therefore presses for the relief of reinstatement.

9. I may observe that recently the Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation MANU/SC/0060/2010 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; that when a workman has been illegally deprived of his employment, 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. Damages were held to be a poor substitute for reinstatement. The two Judge Bench of the Supreme Court, though noticed that of late there had been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations as the Industrial Disputes Act, held that the approach of the Courts must be compatible with the constitutional philosophy of which the Directive Principle of State Policy constitute an integral part. It was held that justice due to the workman should not be denied by entertaining

specious and untenable grounds put forward by the employer. The Supreme Court restored the order of the Labour Court of reinstatement with back wages and set aside the order of the High Court of compensation in lieu of reinstatement.

10. However, other bench of two Judges of the Supreme Court in Jagbir Singh (supra) has awarded compensation in lieu of reinstatement.

11. The question which arises is as to which judgment of the aforesaid two, of the Supreme Court is to be followed in the present case. 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 had been changed from that of 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 official 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 project with 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. It was held by the Supreme Court 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 statute 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 emphasised 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 few 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 operations 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 recruitment only upon compliance with the equality clause contained in 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.

12. In the present case, the factors which lead me to hold that the respondent workman is not entitled to reinstatement but only to compensation in lieu of reinstatement are:-

(i) The respondent workman having worked with the petitioner for about 15 months only.

(ii) The respondent workman now being not in the employment of the petitioner for over 30 years and likely to be at the fag-end of his employment.

(iii) If the respondent workman is now reinstated with consequential benefits, it would disturb the harmony in the cadre and may lead to several other disputes.

(iv) The respondent workman is a technical person, a fitter. He is likely to have, have/had other employment avenues.

13. The next question which arises is as to the quantum of compensation. The respondent workman as aforesaid has already been receiving minimum wages from the petitioner and has so received a sum of approximately Rs.3,00,000/- till now. The counsel for the petitioner contends that in similar circumstances the courts have been awarding compensation in lieu of reinstatement ranging from Rs.10,000/- to Rs.50,000/- only. I am however of the opinion that the compensation should be such so as to match the financial burden which the petitioner would avoid by reinstating the respondent workman and by deducting therefrom the value of the work which would be taken/would have been taken by the petitioner from the respondent workman. The element of the respondent workman having not worked has to be factored in the same.

14. Considering all the aforesaid aspects, compensation in the sum of Rs.3,00,000/- besides the amounts received till now is found to be appropriate.

15. Accordingly, the writ petition is partly allowed. Instead of the relief of back wages and reinstatement with all the consequential benefits, the respondent workman shall in addition to the amounts already received, be entitled to compensation of a further sum of Rs.3,00,000/- from the petitioner. The petitioner to pay the said amount within four weeks here- from failing which the same shall incur interest at 9% per annum.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 3rd March, 2010/gsr