The Management Of M/S. Flood ... vs Sh. S.K. Manocha And Anr.
2010 Latest Caselaw 4905 Del

 *         IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                    W.P.(C) No. 3507/1996

 %                                          25th October, 2010



 THE MANAGEMENT OF M/S. FLOOD CONTROL DEPARTMENT
                                          .... Petitioner

                           Through:    None.

                      VERSUS

 SH. S.K. MANOCHA AND ANR.                         ....Respondents

                           Through:    None.


 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

 1.   Whether the Reporters of local papers may be
      allowed to see the judgment?

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


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

VALMIKI J. MEHTA, J (Oral)

1.    This matter is shown on the Board since 11.AM. It is now 12.15

PM. However, no one has appeared on behalf of the petitioner. The

order sheets of this case show that after admission of the petition on

15.9.1998, none has appeared for the petitioner thereafter on various

dates. The dates on which one appeared on behalf of the petitioner

are 16.11.2004, 20.5.2005, 12.09.2005, 9.11.2005 and 28.3.2006.

Even the rejoinder affidavit has not been filed although opportunity



WPC 3507/1996                                                 Page 1 of 6
 was granted way back on 12.9.2005.         I have therefore perused the

records and am proceeding to dispose of the petition.

2.    By means of the present petition under Articles 226 and 227 of

the Constitution of India, the petitioner, namely the Management of

Flood Control Department of the Government of National Capital

Territory of Delhi, challenges the Award dated 15.4.1996 passed by the

Presiding Officer, Labour Court, and by which award, the petitioner was

directed to reinstate the respondent no.2/workman with full back

wages as his retrenchment was found to be in violation of Section 25F

of the Industrial Disputes Act, 1947 (hereinafter referred to as the

„Act‟).

3.    The facts of the case are that the respondent no.2 was employed

as a daily wager/on muster roll since      1980 by the petitioner.     The

petitioner worked from the year 1980 to 1987. It is an admitted case

that the respondent no.2 worked for 261 days in 1982, 241 days in

1983, 184 days in 1984, 274 days in 1985, 290 days in 1986 and 122

days in 1987. It is alleged by the petitioner that the respondent no.2

thereafter in 1987 left the services on his own whereas the case of the

respondent no.2 is that he has been illegally retrenched without

complying with the requirements of Section 25F of the Act. A reference

order was made on 8.3.1988 for adjudication by the Labour Court as to

whether the termination of the services of the respondent no.2 is

illegally/unjustified and to what relief the respondent no.2 is entitled in

case the termination of services is found to be illegal/ unjustified. This

WPC 3507/1996                                                     Page 2 of 6
 reference was answered in favour of the respondent no.2 workman by

the impugned award.

4.      The impugned award arrives at the following conclusions:-

(i)     The respondent no.2 workman has worked continuously for more

than 240 days.

(ii)    The respondent no.2 workman did not leave on his own but his

services were illegally terminated.

(iii)   The requirements of Section 25F of notice period wages and

giving of 15 days pay for each year of working has not been complied

with.

5.      By the impugned award therefore the petitioner was directed to

reinstate the respondent no.2 along with full back wages. Some of the

relevant paragraphs of the impugned award read as under:-

        "11. Shri Ashok Chopra MW1 in his statement admits that
        Partap Singh was working on daily wages as muster roll
        employee w.e.f. 1-11-80 and he worked 49 days in the
        year 1980, he worked 50 days in 1981, 261 days in 1982,
        241 days in 1983, 184 days in 1984, 274 days in 1985,
        290 days in 1986 and 122 days in 1987 and he left the
        services after 20-7-87 at his own and the management
        wrote a letter to the workman the copy of which is
        WW1/5.

        16. Partap Singh in his affidavit has stated that his
        services were terminated from 1-7-87 without any notice
        or compensation. There is no reason to disbelieve the
        statement of his workman who has been working
        admittedly on daily wages since 1-11-80 as per the
        admission of the management.          The plea of the
        management that the workman himself left the service on
        30-6-97 is even otherwise improbable.

        17. The workman has deposed that he sent a demand
        notice to the management on dated 30-9-87 the copy of

WPC 3507/1996                                                   Page 3 of 6
      which is WW1/1 postal receipt is WW1/2. Before sending
     this demand notice the workman has written to the Lt.
     Governor Delhi a letter the copy of which is WW1/7 and
     postal receipt is WW1/8. In letter dated 17-9-87 and 30-9-
     87 the workman has alleged that in Delhi 1987 his
     services have been terminated by the management. The
     statement of the workman is supported by these notices
     sent to the management and other authorities sometimes
     after the termination of the service of the workmen.
     19. It is an admitted fact that on 1-7-87 the workman
     has rendered services of 122 days in the year 1987 and
     he has admittedly rendered the services of 290 days in
     the year 1986.       So from these facts it is clearly
     established that the management was required to comply
     the conditions precedent to valid retrenchment provided
     in Section 25F of the Industrial Disputes Act. Ashok
     Chopra MW1 in his statement has stated that no
     retrenchment benefits have been given to the workman.
     As the workman has been in continuous service for a
     period of not less than one year before the termination of
     his service and as the management has failed to comply
     with the provisions of Section 25F of the regarding valid
     retrenchment, the retrenchment is invalid.

     21. In the light of above discussion it is held that it is
     proved that the termination of services of the workman
     Partap Singh was illegal and unjustified and the workman
     is entitled to the relief of full back wages and the
     management is directed to give to the workman full back
     wages and reinstate him in his service."


6.   Before this court is persuaded to exercise its power under Articles

226 and 227 of the Constitution of India it has to be shown that there is

ex facie illegality or perversity in the impugned award. A reading of

the aforesaid paragraphs of the impugned award show that there is

neither any illegality or perversity.   In fact, the award is just and

proper, except to a minor extent of granting full back wages and which

is being considered subsequently hereinafter. I may note that during




WPC 3507/1996                                                   Page 4 of 6
 the pendency of the present case, payment in terms of Section 17-B

has already been made to the respondent no.2/ workman.

        It is therefore clear that the termination of the respondent no.2

workman was not justified and clearly fell foul of Section 25F and the

direction in the impugned order for his reinstatement cannot be faulted

with.    Respondent no.2 should therefore be reinstated at the same

status of a casual labourer which he was at the time of his

retrenchment.

7.      The only issue is whether the respondent no.2/workman should

be granted full back wages or not. On the one hand, it is clear that the

respondent no.2 has worked for more than 240 days right from 1982 to

1987 (except in 1984 where he worked for 184 days), on the other

hand, it is clear that the petitioner had appointed another person in

place of respondent no.2 who would have been paid for undertaking

the job of cleaning of drains.    In the facts and circumstances of the

case, therefore, I deem it fit that instead of granting 100% back wages,

the respondent no.2 should only be allowed 75% back wages instead of

full back wages as granted by the impugned Award. It is also possible

that respondent No.2- a daily wager, obviously, would have preferred

to work elsewhere and not sit at home. The respondent no.2 is not in

that strata of society whether he could have preferred to sit at home

being doing nothing. Accordingly, it is deem appropriate that the back

wages will be only 75% and not the full back wages as granted by the

impugned award.

WPC 3507/1996                                                    Page 5 of 6
 8.   In view of the above, the present petition is disposed of by

sustaining the award with respect to reinstatement of the respondent

no.2/workman as also grant of back wages, however, the back wages

shall not be full back wages but only 75% of the back wages.         The

petitioner is directed to reinstate the respondent at the same status he

was of a casual labourer when he was retrenched.

     The petition is therefore disposed of as above, leaving the parties

to bear their own costs.



                                              VALMIKI J. MEHTA, J.

OCTOBER 25, 2010 ib