Delhi High Court
M.J. Porashad vs A.G.E.B.R.&T. Garrison Engineer ... on 17 April, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P.(C) 6796/2001
+ Date of Decision: 17th April, 2012
# M.J. PORASHAD ....Petitioner
! Through: Mr. Anuj Aggarwal, Advocate
Versus
$ A.G.E.B.R.&T. GARRISON
ENGINEER (CENTRAL) & ANR. ...Respondents
Through: Mr. Sachin Datta, CGSC with
Mr. Kapil Wadhwa, Advs. for
R-1
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J: (ORAL)
The petitioner-workman is aggrieved by the Award of the
Central Govt. Industrial Tribunal-cum-Labour Court (CGIT) whereby
the industrial dispute raised by him regarding termination of his
services by his employer, respondent no. 1 herein, was rejected and it
was held that he had failed to establish that his services had been
terminated illegally and unjustifiably.
2. The petitioner-workman was admittedly employed by
respondent no. 1 as a muster roll employee w.e.f. 7th September, 1982
and subsequently his services were regularized with effect from 10 th
November, 1984. His services were terminated on 15 th November,
1985.
3. The petitioner-workman raised an industrial dispute which came
to be referred to the CGIT for adjudication. Before the CGIT the
submission of the petitioner-workman was that his services had been
terminated by the respondent no. 1 without compliance of the
provisions of Section 25-F of Industrial Disputes Act and that there
was violation of the provisions of Section 25-G & H also.
4. The respondent no. 1-management had contested the claim of
the petitioner-workman inter-alia on the ground that M.E.S. was not
an industry, his initial appointment itself was illegal as at the time of
his appointment there was a ban on recruitment which fact was not in
the knowledge of MES and accordingly his services were terminated
with effect from 15th November, 1985 after giving one month notice
by invoking Sub-Rule 1 of Rule 5 of CCS (TS) Rules, 1965 and also
that his services could be terminated without any reason as
employment was temporary and Section 25-F was not applicable since
the termination of his services did not amount to retrenchment.
5. The Presiding Officer of the CGIT came to the conclusion that
the respondent was an industry and that the petitioner-workman had
been retrenched but petitioner-workman had failed to establish that
provisions of Section 25-F of Industrial Disputes Act were attracted by
not adducing sufficient evidence to show that he had worked for a
continuous period of one year before the termination of his services.
Consequently his claim came to be rejected. Feeling aggrieved, the
present writ petition was filed by the petitioner-workman.
6. Learned counsel for the petitioner-workman has submitted that
the findings of learned CGIT to the effect that Section 25-F of
Industrial Disputes Act was not attracted since the petitioner-workman
had failed to establish that he had worked continuously for a period of
one year prior to termination of his services is perverse in view of the
fact that his employer itself had not disputed that fact and in fact in its
written statement as well as in the written arguments submitted by it
before the CGIT it had been admitted that he had worked for more
than 240 days prior to termination of his services and that had to be
treated as one year's service as under Section 25-B and consequently
the impugned Award is liable to be set aside.
7. On the other hand, learned counsel for the respondent no. 1-
management submitted that there is no infirmity in the Award of the
CGIT in view of the fact that the termination of the services of the
petitioner-workman did not even amount to retrenchment as his case
fell within the exception clause (1) of Section 2(oo)(bb) of Industrial
Disputes Act since he was on probation and his services had been
terminated as per the terms of the contract of employment during the
period of probation, which was of two years from 10th November,
1984.
8. After having considered the rival submissions, I am of the view
that this writ petition deserves to be allowed and the Award of the
CGIT cannot be sustained.
9. A perusal of the impugned Award shows that the plea raised by
respondent no. 1-management to the effect that it was not a case of
retrenchment was rejected by the CGIT. That finding was not
challenged by the respondent's counsel before this Court. However, as
far as the petitioner-workman's grievance that there was a non-
compliance of Section 25-F of Industrial Disputes Act is concerned,
the CGIT came to the conclusion that since he had failed to establish
that he had worked continuously for a period of one year prior to the
termination of his services, there was no need of compliance of
Section 25-F of Industrial Disputes Act. This finding, in my view,
cannot be sustained because of the fact that the respondent no. 1-
management itself had admitted this part of the petitioner's claim in its
written statement and written arguments filed before CGIT. Even
during the evidence, this fact was not disputed on behalf of the
management. In view of the fact that management itself had admitted
that the petitioner-workman had worked for more than 240 days prior
to the termination of his services, the decision of CGIT to the effect
that Section 25-F was not attracted is totally unsustainable.
10. The management had also contested the claim of the workman
on the ground that his initial appointment was illegal and therefore, it
was justified in invoking Sub-Rule 1 of Rule 5 of CCS (TS) Rules,
1965. As far as that part of the defence of the respondent is concerned,
it has failed to establish the same by not adducing any evidence to
show that the initial appointment of the petitioner-workman was
illegal.
11. I, therefore, allow this writ petition. The impugned Award of
CGIT is set aside. The termination of services of petitioner-workman
is held to be in breach of mandatory provisions of Section 25-F of
Industrial Disputes Act. Now, it is well settled by the decisions of
Hon'ble Supreme Court that once the termination of services of an
industrial worker is found to be in violation of the mandatory
provisions of Section 25-F of the Industrial Disputes Act, the
termination is void ab initio. Reference in this regard can be made to
one decision of the Supreme Court in the case of "Anoop Sharma Vs.
Executive Engineer, Public Health Division No. 1, Panipat", (2010)
5 SCC 497. Resultantly, the petitioner-workman is ordered to be
reinstated in service. As far as the back wages are concerned,
considering all the facts and circumstances and particularly the fact
that he had worked as a regular employee only for a short period, the
respondent no. 1-management shall pay him only 50% of his back
wages. The petition stands disposed of accordingly.
P.K. BHASIN, J
APRIL 17, 2012/rd
