Government Of Nct Of Delhi vs Sh. D.S. Bawa & Anr
2010 Latest Caselaw 2608 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 3659/1996

%                                            Date of decision: 17th May, 2010

GOVERNMENT OF NCT OF DELHI               ..... Petitioner
               Through: Mr. Anjum Javed & Mr. Aliafser,
                        Advocates

                                    Versus
SH. D.S. BAWA & ANR.                          ..... Respondents
                   Through: Mr. Anuj Aggarwal, 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?               Yes

2.       To be referred to the reporter or not?              Yes

3.       Whether the judgment should be reported             Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner by this writ petition impugns the ex parte award dated

22nd February, 1993 of the Labour Court directing the petitioner to reinstate

the respondent no.2 workman with full back wages and continuity of

service as well as the order dated 27th November, 1995 dismissing the

application of the petitioner for setting aside of the ex parte award.

2. The Labour Court on the basis of the ex parte evidence of the

respondent no.2 workman found that the respondent no.2 workman was

working as a daily rated casual muster roll worker with the petitioner since

5th May, 1984; the services of respondent no.2 workman had been

terminated in May, 1987 without assigning any reason. The Labour Court

found that the respondent no.2 workman had worked for the petitioner for

more than 240 days in a calendar year preceding the date of his termination

and the petitioner could not have terminated the services of the respondent

no.2 workman without complying with the provisions of Section 25F of the

I.D. Act and which had not been done. The action of the petitioner was

thus held to be in violation of the provisions of law and the respondent no.2

workman was held entitled to reinstatement. It was further found on the

basis of ex parte evidence of the respondent no.2 workman that the work

being performed by the respondent no.2 workman was the same as being

performed by the regular employees. The respondent no.2 workman was

thus also held entitled to be paid at the same scale as being paid to the

regular employees, however without any increment. The award also

records that though the petitioner had appeared before the Conciliation

Officer but chose not to appear before the Labour Court; instead, the

Deputy Director (Horticulture), Development Division-II, Public Works

Department of the Delhi Administration was found to have showed utter

negligence and ignorance in not participating in the matter inspite of

knowledge of the proceedings.

3. The Labour Court, vide order dated 27th November, 1995, has

dismissed the application of the petitioner for setting aside of the ex parte

award for the reason of the application having been filed after the expiry of

30 days from the date of publication of the award and the Labour Court

having become functus officio. However, it was also observed that the

petitioner had knowledge of the proceedings and had thus no case for

setting aside of the ex parte award.

4. This Court issued notice of the writ petition. Subsequently, vide

order dated 25th July, 1997, recovery proceedings were stayed subject to

the petitioner depositing a sum of Rs.1,61,562/- in this Court. Out of the

said amount, a sum of Rs.3,000/- was permitted to be released to the

respondent no.2 workman towards litigation expenses. The respondent

no.2 workman applied under Section 17B of the I.D. Act. The said

application was allowed and the petitioner was directed to pay

Rs.92,678.43p to the respondent no.2 workman towards last drawn /

minimum wages from the date of the award till 28 th February, 1997. The

petitioner preferred an appeal against the order under Section 17B of the

I.D. Act. The Division Bench in LPA No.386/1998, vide order dated 18th

September, 1998 allowed the sum of Rs.92,678.43p (supra) to be released

to the respondent no.2 workman out of Rs.1,61,562/- deposited earlier by

the petitioner in this Court. The petitioner was directed to deposit a further

sum of Rs.21,657/- in this Court and also directed to make payment under

Section 17B of the I.D. Act to the respondent no.2 workman for the period

subsequent to 28th February, 1997. Rule was issued in the writ petition on

17th February, 1999. The petitioner failed to comply with the order under

Section 17B of the I.D. Act leading to the vacation of the interim order on

19th September, 2000. The Trial Court record was requisitioned on 5th

December, 2007. However, the same was not traceable. On 2 nd December,

2008 the petitioner was again directed to pay the arrears under Section 17B

of the I.D. Act in terms of earlier directions of this Court. The counsels

have been heard.

5. The counsel for the respondent no.2 workman has at the outset stated

that the present writ petition is liable to be dismissed summarily for the

reason of the order under Section 17B of the I.D. Act having not been

complied by the petitioner till date inspite of orders / directions aforesaid.

Reliance in this regard is placed on order dated 4 th May, 2010 of a Single

Judge of this Court in WP(C) No.21069/2005. In the said order, the Single

Judge of this Court on the contention of the workman that the order under

Section 17B of the I.D. Act was un-complied, dismissed the writ petition.

However, there is no discussion in the said order as to whether on such non

compliance the writ petition is liable to be dismissed.

6. I find that another Single Judge of this Court in M/s Hindustan

Carbide P. Ltd. Vs. NCT of Delhi W.P.(C) No.817/1999 decided on 11th

October, 2002 has also taken a similar view. I however find that the

Supreme Court in Hindustan Zinc Ltd. Vs. Industrial Tribunal (2001) 10

SCC 211 has deprecated the practice of disposing off the writ petitions for

the reason of non-compliance with the order under Section 17B, without

dealing with the merits. The Division Bench of the Madhya Pradesh High

Court in Krishi Upaj Mandi Samita Bada Malhara Vs. Yashwant Singh

Bundela MANU/MP/0622/2007 following the aforesaid dicta set aside the

order of a Single Judge directing automatic dismissal of the writ petition

because of non compliance of Section 17B of the Act. Besides, in the

present case, it transpires that the respondent no.2 workman had earlier also

complained of non compliance of the order under Section 17B of the I.D.

Act and filed CM No.1061/2000 in this Court. However, the said CM was

disposed of with the order only of vacation of the interim order. It was not

deemed appropriate at that stage to dismiss the writ petition. The counsel

for the respondent no.2 workman has not been able to show as to how

inspite of the said order, the respondent no.2 workman has now become

entitled to dismissal of the writ petition for the same reason. The

respondent no.2 workman having availed the benefit of vacation of the

interim order cannot now seek the dismissal of the writ petition also. The

same would tantamount to review of the order dated 19th September, 2000

and for which no case is made out.

7. That brings me to the merits of the controversy. It is the admitted

position that the respondent no.2 workman was a daily rated muster roll

employee. On enquiry, the counsel for the respondent no.2 workman states

that he is seeking reinstatement as a daily rated muster roll employee only

and not as a regular employee. It is however stated that if the seniority of

the respondent no.2 workman in the muster roll is maintained, the

respondent no.2 workman would have a much better chance of

regularization.

8. The petitioner at the outset has sought setting aside of the ex parte

award and an opportunity to contest the same on merits. However, neither

is a case for setting aside of the ex parte made out nor is it deemed

expedient now, after 17 years to relegate the parties to the status quo ante.

The petitioner also in the writ petition admits that it had knowledge of the

industrial dispute. Its version is that the dispute was transferred from one

Labour Court to the other and the petitioner was not sent any notice from

the transferee Labour Court and was unaware of the date of hearing before

the transferee Labour Court. However, it is admitted that the petitioner of

its own had traced the case and had written to the Labour Court seeking

certain information. In fact, the Labour Court has in the award as well as

in the order dismissing the application for setting aside of the ex parte

award commented adversely on the said conduct of the officials of the

petitioner. This Court also from time to time enquired from the petitioner

as to what action had been taken against the erring official of the petitioner.

However, save for stating that disciplinary proceedings had been initiated

against such official, no information has been given. Once it is admitted

that the petitioner was aware of the proceedings before the transferee

Labour Court, the non appearance and non participation of the petitioner

therein is inexplicable and the petitioner has no case for setting aside of the

ex parte award.

9. The counsel for the petitioner next contends that as per the policy

decision laid down by DG, Central Public Works Department, New Delhi,

only a muster roll labourer who renders minimum 240 days of continuous

service in each of the two consecutive years is eligible to be considered for

regularization in the said Department subject to availability of vacancies. It

is contended that the respondent no.2 workman worked from 5 th May, 1984

to 31st December, 1984 i.e. for 134 days, from 1st January, 1985 to 31st

December, 1985 i.e. for 248 days and from 1st January, 1986 to 2nd July,

1986 i.e. for 106 days. It is contended that since the respondent no.2

workman did not fulfill the basic requirement of minimum continuous

service of 240 days in two consecutive years, he was not eligible to be

considered for regularization. It is further the case of the petitioner that

with effect from 3rd July, 1986, the petitioner abandoned his duties.

10. It thus stands admitted by the petitioner itself that the respondent

no.2 workman had worked with it for more than 240 days in the 12 months

preceding 2nd July, 1986 when his services were admittedly dispensed with.

The provisions of Section 25B and 25F of the I.D. Act thus become

applicable. The petitioner could not have terminated the services of the

respondent no.2 workman without compliance with law and which has

admittedly not been done. The further case of the petitioner is that it is the

respondent no.2 workman who after 2nd July, 1986 did not turn up for duty.

The case of the respondent no.2 workman is otherwise i.e. that he was not

given employment. The petitioner having chosen not to contest the

proceedings before the Labour Court has only itself to blame. The Labour

Court on the basis of unrebutted evidence of the respondent no.2 workman

held that the respondent no.2 workman had offered his services. The

petitioner failed to establish a case of abandonment. Moreover,

abandonment amounts to misconduct which requires proper enquiry (see

Shakuntala's Export House (P) Ltd. Vs. Secretary (Labour)

MANU/DE/0541/2005, Municipal Corporation of Delhi Vs. Shri Begh

Raj 117 (2005) DLT 438 & D.K. Yadav Vs. J.M.A. Industries Ltd. (1993)

3 SCC 259). The petitioner admittedly did not conduct any enquiry as it

was required to do if the respondent no.2 workman had absented /

absconded.

11. No case, therefore, of setting aside of the ex parte award in so far as

it declares the termination to be illegal, is made out.

12. The question however arises as to the relief to be granted to the

respondent no.2 workman. In this context, the conduct of the respondent

no.2 workman of raising the dispute after three years of 2nd July, 1986

becomes relevant. Though there is no time limit prescribed for raising the

dispute but in the present case no reason has come out for the respondent

no.2 to have raised the dispute after the long span of three years. A daily

rated muster roll worker is expected to raise the dispute immediately. The

delay gives credence to the plea of the petitioner, though not substantiated,

of abandonment / absenteeism on the part of the respondent no.2 workman.

13. Coupled with the aforesaid is the circumstance of long time having

been elapsed. The respondent no.2 workman has not worked for the

petitioner for nearly quarter of a century. Imposing the respondent no.2

workman now on the petitioner is not found to be conducive to the

industrial harmony being the spirit running throughout the I.D. Act.

Further, the respondent no.2 workman was only a daily rated worker. The

counsel for the respondent no.2 workman as aforesaid admits that

reinstatement would also be as a daily rated worker. The only case is that

such reinstatement may enable regularization / absorption of the respondent

no.2 workman with the petitioner. The counsel for the petitioner on the

contrary states that there is no vacancy and the practice of engaging daily

rated workers has also since been stopped. I thus wonder whether the order

of reinstatement would not lead to further controversies / disputes. The

parties have already been litigating since the year 1989 and the endeavour

of this Court should be to grant a relief which would put an end to the

misery through litigation rather than encourage it. Considering all the

circumstances, I had also called upon the parties to address on the relief of

the lumpsum compensation to be paid in lieu of reinstatement and back

wages etc. The counsel for the respondent no.2 workman has relied on the

recent dicta in Krishan Singh Vs. Executive Engineer, Haryana State

Agricultural Marketing Board 2010 III AD (S.C.) 525 (in that case also

reinstatement was ordered as daily wager only) and Anoop Sharma Vs.

Executive Engineer, Public Health Division MANU/SC/0281/2010 (also a

case of a casual workman who was granted the relief of reinstatement).

14. However, for the reasons aforesaid in the facts and circumstances of

the present case, the award of compensation rather than of reinstatement is

found to be appropriate. Ofcourse, compensation has to be such which is

in lieu of the order of reinstatement and back wages etc.

15. The details of the payments deposited during the pendency of the

writ petition have already been narrated herein above. The petitioner has

also filed reply to CM No.4503/2005 stating that it has made payment of

Rs.1,61,562/-, Rs.21,650/- and Rs.1,88,816/-, i.e. of the total sum of

Rs.3,72,028/- to the respondent no.2 workman. Considering that all the

aforesaid payments are without the respondent no.2 workman having done

any work and further that if the order of reinstatement as daily wager was

to be made, the respondent no.2 workman would have continued to earn the

minimum wages, which recently stood revised, from the petitioner, it is

deemed expedient that besides the payments aforesaid already made (and

of which the respondent no.2 workman would not be liable to refund any

part to the petitioner), the petitioner shall pay a further sum of

Rs.3,00,000/- (Three lacs only) to the respondent no.2 workman in

lumpsum settlement of all claims of the respondent no.2 workman against

the petitioner under the award or otherwise (and inclusive of arrears if any

under the Section 17B order). In payment of the said amount, the amounts

if any lying deposited in this Court together with interest if any accrued

thereon be released forthwith to the respondent no.2 workman. The

balance amount be paid within a period of six weeks hereof, failing which

it shall incur simple interest at 9% per annum. The award impugned in the

petition is modified in terms of above and the writ petition is disposed of.

The respondent no.2 workman is also awarded costs of this proceeding of

Rs.15,000/- payable by the petitioner along with the amounts aforesaid.

RAJIV SAHAI ENDLAW (JUDGE) 17th May, 2010 gsr