Delhi High Court
The Management Of Mcd vs Sh. Desh Raj And Another on 8 July, 2011
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) No. 887/1996
% Decided on: 8th July, 2011
The Management of MCD ..... Petitioner
Through: Ms. Mini Pushkarna, Advocate
versus
Sh. Desh Raj and Another ..... Respondents
Through: None.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
MUKTA GUPTA, J.
1. The present writ petition seeks quashing of Award dated 1 st September,
1994 in ID No.515/1989 whereby the Tribunal held that the services of the
workman were terminated in violation of Section 25F, 25H and also 25G of
the Industrial Disputes Act, 1947 (in short the „I.D. Act‟).
2. The Respondent No. 1 was employed as a daily rated causal muster roll
worker with the Petitioner on 9th November, 1987. From 1st December, 1987
to 15th April, 1988 he was not in employment and was not paid salary for the
said period. Thereafter, he resumed his work and on 29th November, 1988 his
services were terminated. On a dispute being raised the reference in following
terms was made vide notification dated 16th August, 1989:-
"WHETHER the termination of the services of Sh. Desh Raj
is illegal and/or unjustified & if so, to what relief is he
entitled and what directions are necessary in this respect?"
3. The claim of the Respondent No. 1 was that he was employed on 9th
November, 1987 as a daily rated/casual/muster roll worker and was being paid
wages under the Minimum Wages Act whereas his counterparts were paid in
the scale of `750/- to `960/- with usual allowances though the work
performed by them was identical. It was alleged that a notional and artificial
break was given to him from 1st December, 1987 to 15th April, 1988 and
thereafter his services were terminated on 29th November, 1988 without
assigning any valid reason. Though the Respondent has been terminated,
however, his juniors have been retained in service and a fresh workman, that
is, Jagjit Singh was employed in his place after his termination. It is also
stated that no notice or pay in lieu of notice was either offered or paid to him
and further no compensation was paid. According to him, his termination on
29th November, 1988 was a colourful exercise so that the Respondent No. 1
may not complete 240 days in a span of 12 calendar months.
4. The Appellant‟s defence was struck off though the Respondent No. 1
filed his Affidavit and was cross examined by the management. After hearing
the parties the following Award was passed:-
"In view of above discussions, and the evidence on
record, it is proved that services of the workman were
terminated in violation of the abovesaid authority as well
Sec.25-F, H and also 25-G. It is not denied by the
management that notice or pay in lieu of notice was offered or
paid to the workman.
The workman has failed to prove on record that the name
of any of the regular employee working on regular basis and
getting regular pay scale i.e. 750 - 940 or more than the
present workman. None of the documents proved on record by
the workman has supported this averment. Ex. WW1/8, 9, 10
and 13 only proved payment of Rs.1418/- in protest of non-
payment of wages from 16.4.1988 to 30.4.1988, 1.7.1988 to
31.7.1988 and 1.11.1988 to 29.11.1988. No protest was
lodged for the pay breakup period from 1.12.1987 to
15.4.1988. Termination of service of the workman in violation
of Sec.25F as well as in violation of Sec.25-H & G is illegal,
inoperative and in-effective. Meaning, thereby that the
workman continued to be in service.
Accordingly, I hold that the workman continued to be in
service with full back wages. However, he shall not be
entitled to wages for the period 1.12.1987 to 15.4.1988 as he
did not work for the said period also no protest was lodged
when he accepted Rs. 1413/-. The reference is answered
accordingly."
5. Since none appeared on behalf of Respondent No.1, the written
submissions filed on its behalf have been considered. It is stated that the
learned Industrial Adjudicator rightly considered the break period of service
with effect from 1st December, 1987 to 15th April, 1988 for computing 240
days and came to the conclusion that it was a colourable exercise of power to
deprive the workman of his entitlement under Section 25-F of the Industrial
Disputes Act, 1947 (in short „the Act‟). It is contended that the Hon‟ble
Supreme Court in Workmen of American Express International Banking
Corporation v. Management of American Express International Banking
Corporation, AIR 1986 SC 458 gave a progressive and expansive
interpretation of Section 25-B of the Act. Therefore, if any artificial break has
been imposed, the said break cannot be said to interrupt the continuity of
service of the workman. In the light of Samishta Dube v. City Board, Etawah
& another, 1999 II AD (SC) 257, followed in Amar Pal and another v.
M.C.D., 2006 II AD (Delhi) 43, it is concluded that a workman who has not
completed 240 days of service is also entitled to the protection of Section 25G
and H of the Act.
6. From a reading of the Award one fails to understand that once the
Tribunal came to the conclusion that no protest was lodged for the pay
regarding the break up period from 1st December, 1987 to 15th April, 1988
how could the breakup of the term be considered as a colourful exercise
having deprived the Appellant of his legal right to be a regular workman. The
Affidavit of the Respondent stated that after his termination one Jagjit Singh
was employed in his place. From the affidavit it is evident that Jagjit Singh
was employed after 29th November, 1988. Thus, the finding of the learned
Court that since Jagjit Singh was employed after the workman‟s termination,
thus, the break during the interregnum period of 1st December, 1987 to 15th
April, 1988 was a colourful exercise is erroneous.
7. In the written submissions filed by the Respondent, it is contended that
all paid holidays and Sundays will be included in computing the period under
Section 25B of the Act in view of the decision of the Hon‟ble Supreme Court
in Workmen of American Expression Banking Corporation (supra). There is
no dispute to this proposition. However, in the present case, 240 days have
been computed by the learned Trial Court by returning a finding that the break
up for the period from 1st December, 1987 to 15th April, 1988 was an artificial
break up and thus, that period is entitled to be counted in 240 days. In my
opinion, this reasoning is wholly incorrect. The said break cannot be termed
as an artificial break as there is no allegation that the Respondent No. 1
workman worked during that period and he was either not paid or that he was
not shown to have worked on the muster roll. The case of the workman is
also not that he was not permitted to work at that time. There is no evidence
led that the workman had protested to this break. Thus, after excluding the
period from 1st December, 1987 to 15th April, 1988, the period of 240 days
could not be completed and thus, Section 25F of I.D. Act would have no
application. As a matter of fact, there is a finding of the learned Presiding
Officer that Respondent No.1 would not be entitled to wages for the period
from 1st December, 1987 to 15th April, 1988 as he did not work during the said
period and also lodged no protest when he accepted Rs.1418/-. Having held
this, the trial Court could not have held that this was an artificial break given
and thus, entitled to be included in counting 240 days.
8. In Essen Deinki v. Rajiv Kumar, (2002) 8 SCC 400, Range Forest
Officer v. S.T. Hadimani, (2002) 3 SCC 25 and Surendranagar District
Panchayat and another v. Jethabhai Pitamberbhai, (2005) 8 SCC 450, their
Lordships laid down that where 240 days continuous service was admittedly
not completed, compliance with Section 25F of the I.D. Act was not required.
Thus, termination of the Respondents therein was held to be valid. It was
further held that the burden to prove lay on the workman that he worked for
240 days continuously.
9. Furthermore, vide order dated 31st October, 2000, this Court on an
application filed under Section 17B of the I.D. Act directed that the applicant-
Respondent No.1 was entitled to the last drawn wages with effect from that
date. The Respondent No.1 was further directed to file an affidavit every
three months indicating whether he has been gainfully employed or not.
Respondent No.1 has not complied with that order. No affidavit in this regard
has been filed.
10. In view of the aforesaid discussion, I am of the opinion that the award
dated 1st September, 1994 deserves to be set aside. The writ petition is
accordingly disposed of.
(MUKTA GUPTA)
JUDGE
JULY 8th, 2011
mm
