Delhi High Court
Municipal Corporation Of Delhi vs Shri Narender Kumar And Anr. on 25 October, 2010
Author: Manmohan
#1
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 499/2008
MUNICIPAL CORPORATION OF DELHI ..... Appellant
Through: Mr. Mukesh Gupta, Advocate.
versus
SHRI NARENDER KUMAR AND ANR. ..... Respondents
Through: Ms. Neelam Tiwari, Advocate for
Mr. Anuj Aggarwal, Advocate.
% Date of Decision: 25th October, 2010
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the 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 in the Digest? No.
JUDGMENT
MANMOHAN, J :
1. Present Letters Patent Appeal has been filed challenging the
judgment and order dated 24th September, 2007 whereby the learned
Single Judge has dismissed the appellant's writ petition being W.P.(C)
15232/2004. It is pertinent to mention that the aforesaid writ petition
had been filed challenging the award dated 18 th September, 2003 passed
by the Labour Court No.IX in I.D. No.232/95.
2. During the course of hearing of the appeal, we had put a
suggestion to both the parties to amicably resolve the matter if possible.
The order dated 20th August, 2010 is reproduced hereinbelow:-
"Without prejudice to the contentions raised in the
appeal, a suggestion was given to the learned counsel for
the parties to settle the controversy.
Regard being had to the period of service rendered and
taking note of the fact that the workman was paid upto
2004, it is thought appropriate that payment of
Rs.75,000/- as compensation to both the workman who
are respondents herein would subserve the cause of
justice.
Mr. Mukesh Gupta,learned counsel for the appellant and
Mr. Anuj Aggarwal, learned counsel for the
respondents shall obtain necessary instruction from their
respective clients.
List the matter on 09th September, 2010."
3. When this matter was taken up for hearing on 25th October, 2010,
Mr. Mukesh Gupta, learned counsel for the appellant-MCD stated that
MCD was willing to pay ` 75,000/- each to both the respondents-
workmen in full and final settlement of all their claims and dues.
However, Ms. Neelam Tiwari, learned counsel for the respondents-
workmen stated that respondents-workmen are not willing to accept
`75,000/- each in full and final settlement of their claims.
Consequently, with the consent of the parties, matter has been heard.
4. Mr. Mukesh Gupta, learned counsel for the appellant submitted
that the respondents-workmen had been employed on daily wages for a
specific period of 53 days only and consequently the termination of
their services could not be considered as retrenchment within the
meaning of Sections 2 (OO) and 25-F of the Industrial Disputes Act,
1947 (for the brevity "Act"). Mr. Gupta reiterated that the learned
Single Judge had failed to appreciate that the employment of the
respondents-workmen was purely temporary and contractual in nature
against seasonal work for a specified period of 53 days and, therefore, it
could not be assumed that the respondents-workmen services were
terminated by the appellant-management. Accordingly, he submitted
that the provisions of Sections 25-G and 25-H of the Act are not
applicable to the respondents-workmen.
5. Ms. Neelam Tiwari, learned counsel for the respondents-
workmen submitted that the finding impugned by the appellant was a
pure finding of fact and could not be interfered with in a Letters Patent
Appeal.
6. Having heard the parties and perused the record, we find that the
Labour Court has erroneously reached the conclusion that the appellant-
management had failed to prove that it had engaged the respondents-
workmen for a specific duration, even though it recorded in its award
dated 18th September, 2003 that, "the appointment letter dated 12th
October, 1989 though shows that the claimants were appointed for a
period of three months." In fact, from the award it seems that the
Labour Court has disregarded the specific appointment letter only on
the ground that the witness of the appellant had stated in his cross-
examination that, "he was not aware as to what was the exact nature of
duration of employment". In our opinion, in view of the written
appointment letter no oral evidence to the contrary could have been
entertained. In fact, the conclusion arrived at by the Labour Court is
not only contrary to law but also a perverse one.
7. Consequently, as the appointment of respondents-workmen as
casual workers was for a fixed period and their termination was in
accordance with the contract of employment, Section 25-H of the Act
would not have any application.
8. In fact, the Supreme Court in Regional Manager, SBI Vs.
Mahatma Mishra, (2006) 13 SCC 727 has held as under:-
"6. The approach of the Labour Court as also the High
Court cannot be appreciated. The respondent was
appointed only for 88 days. The requirements of Section
6-N of the U.P. Industrial Disputes Act were, thus, not
required to be complied with. The Labour Court although
proceeded on the basis that Section 25-H of the Industrial
Disputes Act would be attracted, no reason has been
assigned in support thereof. If the appointment of the
respondent as a casual worker was for a fixed period and
the termination of his services was in terms of contract of
employment, Section 25-H of the Industrial Disputes Act
would not have any application. In a case of this nature,
Section 25-H of the Industrial Disputes Act is not
attracted. It is not in dispute that the appointment of the
respondent was made in violation of circular letter issued
by the appellant Bank. Requirements of law as envisaged
under the Employment Exchanges (Compulsory
Notification of Vacancies) Act, 1959 had also not been
complied with.
xxx xxx xxx
8. The Labour Court committed a serious illegality in
proceeding on the basis that retrenchment was illegal. It
was not so. As was rightly observed by the High Court,
the respondent was not entitled to a permanent status. If
he was not entitled to conferment of any permanent status
having worked only for 88 days and that too in the year
1982, we fail to understand as to how he was entitled to
be reinstated in service and that too with full back wages.
The High Court although noticed the recent decisions of
this Court in relation to grant of back wages but it failed
to consider a vital aspect of the matter viz. reinstatement
in service can be directed provided the termination is
illegal. No finding of fact has been arrived at that the
termination of the service of the respondent was illegal.
The question of directing an award reinstating him in
service did not and could not arise."
(emphasis supplied)
9. In view of the aforesaid dictum of law, the present appeal is
allowed and the order of Labour Court as well as the learned Single
Judge's order is set aside. But keeping in view the long drawn out
litigation and the ill informed witness that was produced by the MCD,
we are of the opinion that the ends of justice would be met if ` 75,000/-
each is awarded as compensation to both the respondents-workmen.
The said amount shall be paid to the respondents-workmen within three
months from today by way of an account payee cheque and that too
against a receipt.
10. Order dasti.
MANMOHAN, J
CHIEF JUSTICE
OCTOBER 25, 2010
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