Workman Sh. Mohan Ram (Deceased) ... vs M/S Universal Ferro & Allied ...
2011 Latest Caselaw 2067 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 18th April, 2011.

+                              W.P.(C) 6604/2001

%        WORKMAN SH. MOHAN RAM (DECEASED)
         THROUGH LEGAL HEIRS                  .... Petitioners
                     Through: Mr. Baburao Pakhidey & Mr.
                              Vikas Pakhidey, Advocates
                                   Versus
         M/S UNIVERSAL FERRO & ALLIED
         CHEMICALS LTD. & ORS.                ....Respondents
                      Through: Mr. Siddharth Dias, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                     NO
         be allowed to see the judgment?

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 workman impugns the award dated 8th June, 2001

of the Labour Court.

2. Though on the last date, the counsel for the respondent employer

had sought to withdraw from the matter on the ground that he was not

receiving instructions and the matter was adjourned to enable the

counsel for the respondent employer to issue proper notice to the

respondent employer and file an application seeking discharge but

today the counsel for the respondent employer states that he has since

received instructions.

3. Upon being called upon to argue the matter, the counsel for the

respondent employer sought adjournment to file documents stated to be

forming part of the Labour Court record. The Labour Court record has

not been requisitioned in this Court till now. It is not deemed

expedient to adjourn the matter after it has remained pending in this

Court for the last ten years and particularly when the respondent

employer has had an opportunity to in the said time either seek

requisitioning of the Labour Court record or to file documents forming

part thereof.

4. The counsels have been heard.

5. The petitioner workman was admittedly employed as a Driver

with the respondent employer with effect from 1 st August, 1978 and till

31st July, 1987 when according to the petitioner workman, his services

were illegally terminated and when according to the respondent

employer he was retrenched in accordance with law. Reference of the

dispute as to the legality / justification of the termination of services of

the petitioner workman was made to the Labour Court on 3rd March,

1988. The respondent employer was proceeded against ex parte before

the Labour Court and an ex parte award dated 9 th March, 1993 in

favour of the petitioner workman and against the respondent employer,

of reinstatement with full back wages and continuity of services was

published.

6. The respondent employer applied to the Labour Court for setting

aside of the ex parte award and the same was allowed on 22 nd October,

1994.

7. It was thereafter that the award dated 8th June, 2001 impugned in

this petition was published. The Labour Court has disbelieved the

version of the respondent employer of having complied with Section

25F of the Industrial Disputes Act, 1947 and accordingly rejected the

plea of the respondent employer of retrenchment.

8. However, since the petitioner workman had died on 30 th May,

2001 (as confirmed by both the counsels) i.e. shortly prior to the

pronouncement of the award, the Labour Court granted the relief to the

legal heirs of the petitioner workman of payment of `30,000/- only as

compensation besides the amount of `51,525/- recovered by the

petitioner workman in enforcement of the ex parte award (supra). Both

counsels confirm that the said amount of `51,525/- represented the

emoluments due to the petitioner workman under the ex parte award

from the date of termination till the date of that award.

9. The contention of the counsel for the petitioner workman is that

the award of `30,000/- only is perverse once the reference otherwise

was decided in favour of the petitioner workman. It is contended that

even if the minimum wages as payable to a Driver for the period from

1993 i.e. the date of the ex parte award and till the date of demise of

the workman on 30th May, 2001 had been computed, a sum of

approximately `2,84,000/- was due to the petitioner workman.

10. The counsel for the petitioner workman in this regard relies on

Gammon India Ltd. Vs. Niranjan Dass (1984) 1 SCC 509.

11. The counsel for the petitioner workman has further contended

that the respondent employer though did not challenge the award dated

8th June, 2001 but did not pay the amount of `30,000/- awarded

thereunder also to the legal heirs of the petitioner workman and the

said amount was finally paid under directions of this Court only on 24 th

October, 2008 i.e. after more than seven years of the date of the award.

12. The counsel for the respondent employer has contended that the

retrenchment was in order; that the respondent employer had two

vehicles and was employing two Drivers and both Drivers were

retrenched and no dispute was raised by the other Driver. The counsel

for the respondent employer as aforesaid had sought time to produce

the documents, of closure of the undertaking of the respondent

employer at Delhi stated to have been filed before the Labour Court.

He was however permitted to hand over in the Court his file stated to

be containing the said documents. However, perusal of the said file

did not disclose any document which would show closure of the

undertaking of the respondent employer at Delhi at the

contemporaneous time. The counsel also admitted so and states that

the undertaking was closed subsequently but is unable to give the date

thereof. He also states that since then the Bombay office of the

respondent employer is also shut down and all operations of the

respondent employer have come to a close.

13. A perusal of the counter affidavit of the respondent employer

however shows that the closure is stated to be with effect from 19 th

August, 2006 i.e. much after the date of the award and demise of the

petitioner workman. It thus cannot have any bearing on the matter in

controversy.

14. The finding of the Labour Court of the respondent employer

having not complied with the provisions of Section 25F of the Act and

having not paid or tendered the retrenchment compensation to the

petitioner workman prior to or simultaneously with the retrenchment is

a finding of fact and which would ordinarily be not disturbed in

exercise of power of judicial review. The counsel for the respondent

employer is unable to show any perversity in the said finding. He only

contends that the petitioner workman had refused the retrenchment

compensation. There is however nothing to show such refusal having

been proved before the Labour Court or having not been considered by

the Labour Court. Though the counsel for the petitioner workman

from his own file has invited attention to a copy of the letter dated 7 th

August, 1987 stated to have been sent to the petitioner workman but

the same is only a reply to the letter dated 4 th August, 1987 of the

petitioner workman and though records that earlier a letter dated 31st

July, 1987 was sent to the petitioner workman at three addresses but

records that the letter sent to the two addresses including the cheque

was returned with the endorsement "refused", nothing is stated therein

as to whether the cheque was delivered at the third address or not. The

argument urged now is not borne out from the copy of the letter dated

7th August, 1987 shown to this Court.

15. Once the Labour Court has found the termination of the services

of the petitioner workman to be illegal, it is not understandable as to

how the amount of `30,000/- only was computed. Ordinarily upon the

termination being held illegal, the petitioner workman would have

been entitled to the relief of reinstatement with back wages and which

according to the petitioner workman and which is not disputed by the

respondent employer at the rate of minimum wages would have been in

the sum of `2,84,000/-. Even if compensation in lieu of reinstatement

were to be ordered, the same was also required to have a bearing to the

relief of reinstatement and cannot be arbitrary.

16. The counsel for the respondent employer has argued that the

petitioner all this while had not worked for the respondent employer

and thus is not entitled to the full wages to which he would have been

entitled.

17. Considering all the aforesaid aspects, it is deemed expedient to

modify the award by directing the respondent employer to pay a further

sum of `1,00,000/- to the legal heirs of the petitioner workman. On

enquiry, it is informed that the widow of the petitioner workman is

alive. The said amount of `1,00,000/- be paid by demand draft in the

name of the widow within four weeks of today failing which the same

besides the other remedies of the petitioner workman shall also incur

interest at the rate of 10% per annum.

Further compensation having been awarded, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 18, 2011 „gsr‟