Delhi High Court
Horticulture Department, Delhi vs Rajinder Prasad & Ors. on 19 December, 2011
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P.(C) 18943/2006
+ Date of Decision: 19th December, 2011
# HORTICULTURE DEPARTMENT,
DELHI ....Petitioner
! Through: Ms. Sujata Kashyap & Mr. A.K. Singh,
Advocates
Versus
$ RAJINDER PRASAD & ORS. ....Respondents
Through: Mr. Rajiv Agarwal, Advocate
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J: (ORAL)
The petitioner (hereinafter to be referred to as 'the
management') challenges the award dated 8th August, 2006 passed by
the Industrial Tribunal in ID No. 138/2005 directing the management
to treat the respondent no.1 (hereinafter to be referred as 'the
workman') as its regular employee from 1987-88 when, as per the
conclusion arrived at by the learned Tribunal, other employees who
were admittedly junior to the workman had been regularized.
2. The undisputed facts are that the workman was employed with
the management in the year 1985 as a mali/beldar on daily wages
basis. After a couple of years his services came to be terminated
w.e.f. 1st March, 1987. The workman challenged the termination of
his services by raising an industrial dispute and he succeeded in that
challenge on 5th December, 1996 when his reinstatement in service
was ordered along with 50 per cent back wages by the Industrial
Tribunal in I.D. No. 51/1990. The management challenged that award
but failed in its writ petition (being W.P. (C) No. 1121/1999) filed
before this Court and the workman was reinstated w.e.f. 7th August,
2002. While reinstating the workman the management regularized
him also with effect from 7th August, 2002. The workman, however,
felt that he should have been regularized from the date of his initial
appointment, and, therefore, he raised another industrial which was
also referred to the Industrial Tribunal and this writ petition arises out
of that reference.
3. One of the grievances of the workman was that his co-
employees who were junior to him had been regularized w.e.f. 1st
April, 1991. This part of his case was admitted on behalf of the
management in its written statement filed before the Industrial
Tribunal. However, the reason given for not regularizing him in 1991
was that at that time he was not in service as his services were
terminated in the year 1987 though it was admitted that the industrial
dispute in that regard was pending adjudication. Learned Industrial
Tribunal decided the reference by granting the relief of regularization
to the workman with effect from 1987-88 relying upon the cross-
examination of the management's witness (MW-1) to the effect that
employees who were junior to the workman were regularized in the
year 1987. Learned Industrial Tribunal gave him the same relief
ignoring the fact that he himself had claimed in his claim statement
that he had been discriminated against by the management by not
giving him the relief of regularization from April, 1991 when his
juniors were regularized.
4. Feeling aggrieved, the management had filed the writ petition.
It was contended by the learned counsel for the management that the
management's decision not to regularize him from the date when his
juniors were regularized was for the reason that before 7th August,
2002 he was not in service and, therefore, he was not entitled to be
regularized from any date prior to that. In any event, counsel further
submitted, the workman having raised the industrial dispute about
three years from the date of the dismissal of the management's writ
petition whereby it had challenged the earlier award for reinstatement
the impugned award cannot be sustained for this reason also as the
workman's claim should have been rejected on the ground of
unexplained delay in the raising of the dispute.
5. Counsel for the workman on the other hand submitted that the
fact that his services stood terminated at the time when his juniors
were regularized could not be made the basis for denying him the
relief of regularization from the date his juniors were regularized since
the effect of the Industrial Tribunal's award directing his
reinstatement, which had attained finality also with the dismissal of
the management's writ petition filed against that award, was that he
was deemed to be in continuous service right from the date when his
services were terminated. It was also contended that in case the
management's stand that the period when the dispute about
termination of his services was pending adjudication is to be excluded
then that would nullify the award passed by the Industrial Tribunal
particularly when reinstatement order was passed with the benefit of
continuity of service.
6. After having heard the rival submissions of the counsel for the
parties I am of the view that as far as the grant of relief of
regularization to the workman by the Industrial Tribunal from 1987-88
is concerned the same cannot be sustained in view of the categorical
stand taken by the workman himself in his claim statement that he had
been discriminated against by the management by not regularizing
him with effect from 1st April, 1991. Just because the management's
witness had stated during his cross-examination that some workers
had been given the relief of regularization from 1987 the workman
could not get any relief on the basis of that statement. What relief the
workman was to get had to be decided on the basis of his own claim
statement since the management had been called upon to meet the case
of the workman as was pleaded by him and not what emerged during
evidence of the management.
7. However, as far as the management's case that the workman
was entitled to be regularized with effect from 7th August, 2002 from
which date he was reinstated in service cannot be accepted. I am in
full agreement with the submission of the learned counsel for the
workman that the effect of setting aside of the termination of his
service by the Industrial Tribunal would be that he would be deemed
to have been in continuous employment of the management from the
date of termination order and, therefore, he had to get all the benefits
which his co-employees had got and he could not be denied that
benefit on the ground that in the year 1991 he was not in service.
8. Thus, this writ petition is disposed of by modifying the award of
the Industrial Tribunal to the extent that now the workman is granted
the relief of regularization with effect from 1st April, 1991 and not
from 1987-88. However, the workman would only be entitled to
financial benefits with effect from 1st April, 1991 and no seniority
over those who were regularized already.
P.K. BHASIN, J
DECEMBER 19, 2011
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