Delhi Development Authority vs The Presiding Officer, Labour ...
2010 Latest Caselaw 4923 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                         W.P.(C) No. 4309/1996

 %                                           26th October, 2010

 DELHI DEVELOPMENT AUTHORITY                             ...... Petitioner

                                  Through:   Ms. Anusuya Salwan,
                                             Advocate.

                           VERSUS

 THE PRESIDING OFFICER, LABOUR COURT NO.1, DELHI &
 OTHERS                                ....Respondents

Through: Mr. Anuj Aggarwal, Advocate for the respondent No.3.

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?

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

VALMIKI J. MEHTA, J (Oral)

1. By the present petition under Article 226 of the

Constitution of India, the petitioner/ Delhi Development Authority

(DDA) challenges the Award dated 22.2.1996 passed by the

Labour Court directing reinstatement of the respondent

No.3/workman with continuity of service and back wages except

for the period from 1.11.1986 to 19.7.1988.

2. The grant of reinstatement is on the basis of the fact

that the workman has served from 15.6.1983 to 14.10.1983,

15.6.1984 to 14.10.1984 and 9.1.1985 to 31.10.1986 and the

impugned retrenchment is in violation of Section 25F and 25 H of

the Industrial Disputes Act, 1947.

3. Much water has flown since the Award was delivered

on 22.2.1996. The trend of judicial opinion today is that

reinstatement on account of violation of Section 25F, and even

for violation of Section 25H is not automatic . Reinstatement has

to be seen from the point of view of various factors such as

whether the employment was in accordance with the rules or de

hors the same, what is the period for which the workman was

employed, the nature of employment of the workman and various

other factors. The recent decision of the Supreme Court in the

case of Incharge Officer and Anr. Vs. Shankar Shetty 2010

(8) Scale 583 crystallizes the position in paragraphs 2 and 3 of

the said judgment which read as under:

"2. The only question to be considered in this appeal by special leave is with regard to the relief of reinstatement granted to the respondent by the Single Judge of the High Court of Karnataka in his judgment and order dated August 13, 2001 and affirmed by the Division Bench vide its judgment and order dated December 9, 2004 in the writ appeal. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to

end in violation of Section 25F of the Industrial Disputes Act, 1947 (for short „ID Act‟)? The course of decisions of this Court in recent years has been uniform on the above question. In the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr, delivering the judgment of this Court, one of us (R.M.Lodha, J.) noticed some of the recent decisions of this Court-namely, U.P.State Brassware Corporation Ltd. & Anr. V. Uday Narain Pandey; Uttranchal Forest Development Corporation vs. M.C. Joshi; State of M.P.& Ors v. Lalit Kumar Verma; Madhya Pradesh Admn v. Tribhuban; Sita Ram & Ors. V. Motil Lal Nehru Farmers Training Institute; Jaipur Development Authority v. Ramasahai & Anr; Ghaziabad Development Authority & Anr. v. Ashok Kumar & Anr. and Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr. and stated as follows:

"It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of

termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee".

3. Jagbir Singh has been applied very recently in the case of Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal & Ors. (Civil Appeal No. 3815 of 2010) decided on April 26,2010 wherein this Court stated:

"In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice."

4. The Supreme Court in the case of Incharge Officer

(supra) was also dealing with the case of daily wager who was

employed in the year 1985. In the present case, this Court is also

concerned with a daily wager who was retrenched in the year

1986.

5. In the present case, about 25 years have expired

since the retrenchment. The operation of the Award dated

22.2.1996 was stayed by this Court on payment of 50% of the

awarded amount on 3.3.1997. In the peculiar facts and

circumstances of this case applying the ratio in the case of

Incharge Officer (supra) the present is a fit case for directing

compensation instead of reinstatement to the respondent

No.3/workman.

The factors which persuade this Court to grant

compensation instead of retrenchment include the long period of

time since the retrenchment and the Award, the fact that the

workman worked only for two years where the period exceeded

240 days, no requirement of the petitioner necessarily employing

the workman for any minimum number of days and so on and the

fact that the workman has not worked with the employer in spite

of receiving the pay every month as has been subsequently

adverted to. The Supreme Court recently in a catena of

judgments reported as M.P. State Agro Industries

Development Corpn. and Another Vs. S.C. Pandey 2006 (2)

SCC 716, Gangadhar Pillai Vs. Siemens Ltd. (2007) 1 SCC

533, State of M.P. and Others Vs. Lalit Kumar Verma

(2007) 1 SCC 575, Hindustan Aeronautics Ltd. Vs. Dan

Bahadur Singh and Others (2007) 6 SCC 207, State of

Uttaranchal and Another Vs. Prantiya Sinchai Avam Bandh

Yogana Shramik Mahaparishad (2007) 12 SCC 483,

Chandra Shekhar Azad Krishi Evam Prodyogiki

Vishwavidyalaya Vs. United Trades Congress and Another

2008 (2) SCC 552 and Official Liquidator Vs. Dayanand

2008 (10) SCC 1 held that there cannot be regularization de

hors the extant rules. Grant of reinstatement will not directly but

can be said in a way tantamount to granting regular employment

to a daily wager for the whole period although the original

employment is not through a proper selection procedure and

there was no requirement of employment for a fixed number of

days.

In this regard, I am also guided by the fact that there is

nothing on record filed by the respondent No.3/workman as to

what was his status during this period of 25 years since passing

of the impugned Award, whether he is presently in employment,

what is his present scale of pay and so on inasmuch as no

affidavit could be called from the workman as the learned

counsel for the respondent No.3 states that he has not been able

to contact his client and he has no phone number of respondent

No.3/workman where the workman could be contacted. It seems

to be quite clear that since the respondent No.3/workman was

retrenched way back in the year 1986, and being in that strata

where he could not have afforded to sit at home, surely,

therefore the respondent No.3/workman may/could have been

employed gainfully for this period of 25 years. It is possible that

he may be gainfully employed on much better terms and to

which no light is thrown on account of the workman not

contacting his Advocate - a peculiar aspect because otherwise he

is receiving payment every month from the petitioner under

Section 17B.

6. If the respondent No.3/workman was given

compensation under Section 25F in the year 1986, considering

that he was a daily wager, the retrenchment compensation would

have worked out to about Rs.1,000/- only. This compensation is

worked out on the basis of 15 days of pay for each year since

1983 till 1986 and also pay for 30 days. Ms. Salwan, appearing

for the petitioner has stated that charges payable to a daily

wager by the petitioner was approximately Rs.17/- in the year

1988. Thus 15 days wage would be about Rs.255/-. The

workman worked for just two years for the full period of 240 days

and thus for two years the amount of compensation would be

Rs.510/-. To this if we add 30 days notice pay of Rs.255/- the

same would come to Rs.765/-. Even at the very best considering

the days worked in earlier years prior to 1985 and other aspects

the compensation at best would only be Rs.1,000/- calculated as

per the requirement of Section 25F.

Taking into account the inflation and the return of

money which the workman would have got if he would have

received compensation of Rs.1,000/- in the year 1986 and today

we are in 2010, I find that the present is a fit case where

considering that the money multiplies to about double every 7 to

10 years, compensation alongwith penal compensation (so to

say) can at best work out to a sum of Rs.60,000/- when multiplied

from the regular payable compensation under Section 25 F of

Rs.1,000/-.

7. Accordingly, in the facts and circumstances of the

present case and considering the ratio of the judgment of the

Supreme Court in the case of Incharge Officer (supra) the

impugned Award is modified by granting a sum of Rs.60,000/- to

the respondent No.3/workman instead of relief of reinstatement

and back wages as have been granted in the impugned Award. I

however make it clear that, subject to what is stated below, this

sum of Rs.60,000/- will be in addition to the amount of 50% of the

Award which has already been granted to respondent

No.3/workman under the order of this Court dated 3.3.1997.

8. At this stage, It is brought to the notice of the Court

that the petitioner has been complying with the provision of

Section 17B of the Industrial Disputes Act, 1947 after passing of

the impugned Award and monies have been regularly paid every

month to the respondent No.3/workman. Respondent

No.3/workman has been receiving approximately Rs.621/- per

month since December, 1996. Thus the workman would have

already received about Rs.1,80,000/- till date. Accordingly, there

is no need for payment of any further compensation to the

respondent No.3/workman, since the workman has received in

excess of Rs.60,000/- and 50% of the Award amount, the

compensation which I have awarded above. However, the

compensation is treated as the amount which has been paid by

the petitioner to the respondent No.3/workman in compliance

with the provision of Section 17B because in law ordinarily no

recovery can be made if the amount is paid to the workman in

compliance of an order under Section 17B. No recovery will

therefore be affected by the petitioner from the respondent

No.3/workman for the amount in excess of Rs.60,000/- and 50%

of the Award amount already paid. The recovery will not be

effected however subject to the condition that the respondent

No.3/workman files an affidavit in this Court within a period of

four weeks from today that from the year 1986 when he was

retrenched, he has not been in employment of any other

employer and not been receiving any salary from any other

employer from that date till the date of passing of the present

order. In case, the said affidavit is not filed within four weeks,

then, the compensation amount will be restricted to a sum of

Rs.60,000/- plus 50% of the Award amount already paid only and

the petitioner will be free to recover the excess amount paid to

the respondent No.3 because it cannot be the intention of law

that workman can keep on receiving payment under Section 17B

although he is also gainfully employed and receiving salary

elsewhere.

9. With the aforesaid observations, the writ petition

stands disposed of, leaving the parties to bear their own costs.

OCTOBER 26, 2010                     VALMIKI J. MEHTA, J.
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