Prasar Bharati vs L.B. Narula
2011 Latest Caselaw 5447 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 14th November, 2011.

+                         W.P.(C) 1956/2008

%      PRASAR BHARATI                                       .....Petitioner
                   Through:             Mr. Gaurang Kanth, Adv.

                                     Versus
       L.B. NARULA                                        ..... Respondent
                          Through:      Ms. Garima Bhardwaj, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may       Not necessary
       be allowed to see the judgment?

2.     To be referred to the reporter or not?            Not necessary

3.     Whether the judgment should be reported           Not necessary
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the award dated 29.07.2007 of the Industrial

Adjudicator on the following reference:

"Whether the contract awarded by the management of Chief Engineer, Civil Construction Wing, All India Radio, New Delhi to M/s Om Prakash, Malikpur, Tagore Park, New Delhi, is sham? If so, whether the demand of Sh. L.B. Narula for

reinstatement in the establishment of Chief Engineer, Civil Construction Wing, All India Radio, New Delhi is justified? If so to what relief the workman is entitled to."

and directing the petitioner to reinstate the respondent workman along with

50% back wages with effect from the date of termination.

2. Notice of the petition was issued and vide ex parte order dated

12.03.2008, the operation of the impugned award and proceedings initiated

by the respondent workman for implementation thereof stayed subject to the

petitioner depositing a sum of `2,00,000/- in this Court. The respondent

workman applied under Section 17B of the Industrial Disputes Act, 1947

and which application was allowed vide order dated 28.10.2009 though in

the absence of the petitioner. Thereafter on 24.11.2009, the writ petition was

dismissed in default. Restoration was applied for and allowed. The

petitioner has also applied for recall of the order under Section 17B.

Counter affidavit has been filed by the respondent workman. Counsels have

been heard.

3. It is not in dispute that the respondent workman was on 20.12.1992

engaged as a Project Operator during the International Film Festival and

worked till 23.10.1999.

4. The respondent workman along with another had in or about the year

1996 filed OA No.1426/1996 before the Central Administrative Tribunal

(CAT) claiming, that he had been engaged as Assistant Project Operator and

was being paid his salary first by the Director, Film Festival and thereafter

by the Civil Construction Wing of the All India Radio (AIR); though it was

proposed to create regular post but the same had not been done. The

petitioner, in the said OA thus sought the relief of being allowed to continue

as a casual employee till the creation of the post and to be considered for

being absorbed as a permanent employee. It was the plea of the petitioner

then that no regular post had been created; that it had never engaged the

respondent workman; that the respondent workman had in fact been engaged

by the Contractor appointed by the petitioner.

5. The said OA No.1426/1996 was disposed of vide order dated

13.05.1997 of CAT. The said order records that the respondent workman

had admitted in the OA that he had been engaged by the Contractor. The

order however further records that there was some ambiguity as to whether

the respondent workman was then working as a casual employee directly

engaged by the petitioner or as an employee of the contractor; that it

appeared that the engagement initially of the respondent workman was

through the Contractor but the wages were being paid to him directly by the

petitioner. The CAT in view of the statement of the petitioner that no post

had till then been created disposed of the said OA with a direction to the

petitioner that in case regular post were created, the petitioner should

consider the respondent workman therefor subject to the respondent

workman fulfilling the requisite minimum qualifications; direction was also

issued for giving relaxation in age to the respondent workman.

6. The respondent workman filed another OA No.19996/1999 before the

CAT seeking regularization in service. During the pendency thereof, the

respondent workman was disengaged. The CAT dismissed the said OA vide

order dated 01.02.2000 as being barred by res judicata and giving liberty to

the respondent workman to move the Labour Court against the order of his

removal.

7. Aggrieved from the aforesaid, the respondent workman filed W.P.(C)

No.3032/2000 which was dismissed in limine vide order dated 16.11.2000.

8. It appears that thereafter the respondent workman raised the dispute

on which the reference aforesaid came to be made.

9. The Industrial Adjudicator has in the award impugned in this petition,

for the reason of :

(i) the Duty Pass issued by the petitioner to the respondent

workman not mentioning that the respondent workman had

been engaged through Contractor;

(ii) the Duty Card mentioning the designation of the respondent

workman as Assistant;

(iii) the issuance of appreciation letters by the petitioner to the

respondent workman, again not mentioning that he had been

engaged through any Contractor;

(iv) the petitioner having not produced any agreement with the

Contractor through whom the respondent workman was

claimed to have been engaged; and

(v) the witness of the petitioner having, inspite of cross

examination, not produced records pertaining to payment to the

contractor.

held that the contractor through whom the respondent workman was

claimed to have been engaged was a camouflage, smokescreen and disguise.

The Industrial Adjudicator held that it was not in dispute that the respondent

workman had worked for the petitioner from 1992 till 1999 and that his

termination was in violation of Section 25F of the Industrial Disputes Act,

1947. It was further held that in the circumstances aforesaid the work for

which the respondent workman was engaged was of perennial nature.

Accordingly, a finding of a relationship of employer and employee between

the parties was returned and the respondent workman held entitled to

reinstatement.

10. It is the plea of the petitioner, that the award is inconsistent with the

decisions aforesaid of CAT which has attained finality; that the respondent

workman had indulged in bench hunting tactics; that while the decisions of

CAT proceeded on the premise that the respondent workman had been

engaged by a contractor, the Industrial Adjudicator has held the respondent

workman to be an employee of the petitioner.

11. I may mention that the Industrial Adjudicator has also held the

contract labour to be prohibited. A large part of the writ petition is devoted

to the challenge to the said finding of the Industrial Adjudicator. Though

there is merit in the said challenge by the petitioner inasmuch as there is

nothing on record to show that the contract labour in the field of Project

Operators was prohibited but the same would not be relevant for decision of

this writ petition inasmuch as the finding of the Industrial Adjudicator of the

existence of employer employee relationship between the parties is de hors

the same.

12. The only challenge by the petitioner to the aforesaid finding is on the

ground of the order(s) of CAT and of this Court in writ petition preferred

against the said order.

13. I am however unable to find any case of inconsistency. The CAT in

the order dated 13.05.1997 in the first OA preferred by the respondent

workman did not return any conclusive finding as to whether the respondent

workman was directly engaged by the petitioner or through a Contractor,

though noted the admission of the respondent workman in the OA of having

been engaged through the Contractor. This was so noted in the order dated

01.02.2000 in the second OA also. Rather in the order in the second OA,

liberty was expressly granted to the respondent workman to move the

Labour Court. The said order was maintained in the order dated 16.11.2000

(supra) of this Court also in the writ petition filed by the respondent

workman.

14. It is not as if the respondent workman while raising the dispute,

disputed having been initially engaged through a Contractor. Rather the

reference itself was as to whether the same was a sham and a camouflage.

The Industrial Adjudicator has returned a finding of fact of the contract

pleaded by the petitioner being sham and camouflage. Such finding of fact

of Industrial Adjudicator is ordinarily not subject to interference in exercise

of powers of judicial review unless shown to be perverse. No case of

perversity has been pleaded or argued. The Industrial Adjudicator has

recorded that the petitioner neither produced any agreement with the

Contractor through whom the respondent workman was pleaded to have

been engaged nor led any evidence to otherwise show relationship with the

Contractor. It was asked from the counsel for the petitioner during the

hearing also whether any contract or other evidence to show such contractual

relationship can be shown; nothing has been forthcoming. Thus the said

finding cannot be interfered with.

15. Once the conclusion of relationship of employer and employee

between the parties is established, it is not in dispute that the provisions of

Section 25F of the ID Act were not complied with. No error can thus be

found in the finding of the Industrial Adjudicator holding the termination to

be illegal and directing the petitioner to reinstate the respondent workman.

16. I am however of the opinion that the relief granted by the Industrial

Adjudicator to the respondent workman needs modification. It is felt that

considering:

(i) that the respondent workman was a casual employee engaged

for a job for which no post existed;

(ii) the respondent workman has not worked for the petitioner for

the last nearly 12 years;

(iii) there has been complete overhaul in the interregnum of AIR in

which the respondent workman was casually employed;

(iv) it being not deemed expedient to burden the petitioner with the

respondent workman when it has no use for his services; and

(v) the change in technology owing whereto the need for Projector

Operators may have disappeared,

the relief of reinstatement with back wages is not the appropriate

relief and compensation in lieu thereof be awarded.

17. I may also mention that the petitioner in its application for recall of

the order under Section 17B has pleaded that the respondent workman has

been found to be running his own business of a tea shop; the petitioner in

proof thereof has filed a DVD of video clip purportedly showing the

respondent workman carrying on the said business. The said averment of

the petitioner, a Public Sector Undertaking, is believable inasmuch as the

respondent workman cannot be expected to have remained without any

vocation for the last over 12 years.

18. Considering the aforesaid aspects and particularly that of the

respondent workman having worked with the petitioner for seven years,

compensation of `4,00,000/- inclusive of the amounts under Section 17B of

the Act which do not appear to have been paid is found appropriate.

19. The petition is therefore partly allowed to the aforesaid extent and is

disposed of. The Registry to after four weeks hereof release in favour of the

respondent workman the amount of `2,00,000/- deposited by the petitioner

as aforesaid in this proceeding together with up to date interest accrued

thereon. The petitioner to within eight weeks hereof pay to the respondent

workman, the balance out of the compensation of `4,00,000/- after

adjusting the amount so received by the respondent workman failing which

the petitioner besides other remedies of the respondent workman shall also

be liable for interest thereon at the rate of 10% per annum.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) NOVEMBER 14th , 2011 „gsr‟