Bablu Das vs Mgt.Of M/S.P.R.Electricals & Anr
2011 Latest Caselaw 1747 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 25th March, 2011.

+                              W.P.(C) 5458/2003

         BABLU DAS                                         ..... Petitioner
                            Through:      Mr. H.K. Chaturvedi & Ms. Anjali
                                          Chaturvedi, Advocates

                                   Versus

         MGT.OF M/S.P.R.ELECTRICALS & ANR...... Respondents
                       Through: Mr. P.K. Dikshit, Adv. for
                                Mr. Sanjay Sehgal, Adv. for R-1.
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 petition impugns the award dated 17th January, 2003 of the

Labour Court on the following reference:

"Whether the services of Sh. Bablu Das have been terminated illegally and / or unjustifiably by the

management, and if so, to what relief is he entitled and what directions are necessary in this respect."

2. It was the defence of the respondent employer before the Labour

Court that the petitioner was not a "workman" but a contractor and had

left the work of the respondent employer of his own accord on 4 th May,

1993 after full and final settlement. It is not in dispute that the

petitioner was working as a Winder with the respondent employer

since 12th September, 1984 and was last receiving `1,250/- per month.

The Labour Court on the defence of the respondent employer of the

petitioner being a contractor, after consideration of the evidence led

held that without the respondent employer proving anything more, its

bare statement that the petitioner was doing the job of winding on

contract basis could not be accepted. It was found that the petitioner

was carrying out the work of winding in the premises of the respondent

employer and under the directions of the respondent employer and was

thus an employee and a "workman" of the respondent employer. With

respect to the plea of full and final settlement, the Labour Court on the

basis of evidence led held that though a document of full and final

settlement was prepared but the petitioner workman had been able to

prove by examination of himself and other witnesses that the said

document was written under threat and compulsion; moreover the

petitioner workman had immediately filed a police report also in this

regard. The Labour Court accordingly held that the respondent

employer had got executed the said document from the petitioner

forcibly.

3. Though deciding the issues aforesaid in favour of the petitioner

workman and holding that the termination of service of the petitioner

workman was illegal and unjustified, the Labour Court nevertheless

granted the relief only of payment of compensation of `60,000/- to the

petitioner. One of the reasons given for denying the relief of re-

instatement to the petitioner workman was that owing to the allegations

of theft by the respondent employer against the petitioner workman

and of threats of coercion by the petitioner workman against the

respondent employer, the respondent employer would have lost

confidence in the petitioner workman.

4. Aggrieved from the non grant of the relief of re-instatement, the

present petition was filed. Notice thereof was issued. However, the

respondent employer remained unserved for nearly three years. On

20th September, 2005, the petitioner workman informed that the sole

proprietor of the respondent employer had expired. An application was

filed for substitution of legal representatives and notice thereof issued

to the legal representatives; since they were also not found at the

address given, fresh address was furnished and the legal heirs of the

deceased proprietor of the respondent employer appeared on 28 th July,

2008. The said legal heirs however did not appear thereafter and fresh

notice was issued and which could only be served for 20 th May, 2010

when time was sought by the legal heirs for filing counter affidavit.

Thereafter on 16th August, 2010 final opportunity was given for filing

the counter affidavit but the counter affidavit was still not filed. On the

last date i.e. 6th December, 2010 again last and final opportunity was

granted to file the counter affidavit but it has not been filed till now.

The counsel for the legal representatives today again seeks time to file

counter affidavit stating that the records could not be collected till now.

5. However, since last and final opportunity for filing the counter

affidavit has already been granted twice, the request cannot be acceded

to and the counsels have been heard.

6. The counsel for the petitioner contends that the relief of

reinstatement ought to have followed the finding of termination of

employment being illegal. Reliance in this regard is placed on the

recent judgment dated 2 nd April, 2009 of the Division Bench of this

Court in LPA No.85/2009 titled Kamla Vs. The Management of

Director of Social Welfare where it was held that ordinarily where a

workman whose services were terminated illegally will be entitled to

reinstatement and compensation in lieu of reinstatement may be

awarded only in unusual and exceptional cases. It was further held that

in the absence of cogent and valid reason, it would not be proper for

the Labour court to deny the relief of reinstatement to a workman

whose services have been illegally terminated.

7. Reliance is placed next on para 12 of the Management of Delhi

Transport Corporation Vs. Ram Kumar 1992 LAB. I.C. 1378 where

the Division Bench of this Court held that unsubstantive plea of loss of

confidence ought not to come in the way of grant of relief of

reinstatement. He contends that the Labour Court in the present case

has denied the relief of reinstatement only on the ground of loss of

confidence and which as aforesaid held by the Division Bench could

not have been done.

8. The counsel for the legal heirs of the respondent employer has

not been able to urge any submissions.

9. I find that the Labour Court in paras 16 & 17 of the award has

given yet another reason for grant of the relief of compensation only.

Reliance was placed on certain judgments of this Court holding that the

Court was free to adopt any of the two reliefs, of reinstatement or

compensation as it may consider expedient.

10. The Labour Court in the award impugned in this petition has not

returned any finding of the petitioner workman having committed theft

and in lieu of dropping which charge the full and final settlement relied

upon by the respondent employer was recorded. I find merit in the

contention of the petitioner workman that without the incident of theft

having been proved, no reason of loss of confidence could have been

cited for denying the relief of reinstatement.

11. However the Apex Court recently in Jagbir Singh Vs. Haryana

State Agriculture Marketing Board (2009) 15 SCC 327 has reiterated

that compensation in lieu of re-instatement can be granted in

appropriate cases. In the present case, the petitioner workman has not

been working with the respondent employer for the last over 17 years.

Moreover, the employer is now no more. The counsel for the legal

heirs is not even able to state whether the legal heirs are carrying on

the business in which the petitioner workman was employed. I do not

find it appropriate that the petitioner workman be now directed to be

employed with a new employer. Thus, the relief of re-instatement in

view of further a long time having elapsed since the award and the

subsequent event of demise of the respondent employer is not found

appropriate.

12. The question however arises whether the compensation awarded

is adequate. It has been enquired whether the said compensation has

been paid or tendered. The answer is in the negative. It has also been

enquired whether the respondent employer challenged the award. The

answer is again in the negative. The compensation of `60,000/- as of

today, for the illegal termination in the year 1993 is found inadequate.

The respondent employer having not paid / tendered the compensation

till now, are liable for payment of interest thereon. Even if interest

were to be added on the said compensation, the same would take the

amount of compensation to over `1,00,000/-.

13. In the entirety of the facts and circumstances of the case, I am of

the view that the justice will be done if the amount of compensation

together with interest etc. due thereon till today is enhanced to

`1,50,000/-. Since the component of interest till today has been taken

into consideration in arriving at the said figure, future interest on the

said amount at the rate of 10% per annum shall run only if the said

amount remains unpaid for four weeks of today. The award of the

Labour Court is modified accordingly. The respondent employer is

directed to pay the sum of `1,50,000/- to the petitioner workman

within four weeks of today failing which besides the other remedies of

the petitioner workman, the said amount shall also incur interest at the

rate of 10% per annum.

The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MARCH 25, 2011 „gsr‟..