Delhi High Court

Mgt.M/S.Flood Control & Drainage ... vs Shri Fokal & Anr on 6 August, 2012

Author: Mukta Gupta

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 4718/1997
%                                            Reserved on: 24th July, 2012
                                             Decided on: 6th August, 2012
MGT.M/S.FLOOD CONTROL &
DRAINAGE DIV.III                                             ..... Petitioner
                 Through:                 Ms. Zubeda Begum with Ms. Sana
                                          Ansari, Advocates.
                      versus

SHRI FOKAL & ANR                                           ..... Respondents

Through: Mr. M.Mohsin Israily, Advocate.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present petition the Petitioner impugns the award dated 4th July,

1997 whereby it was held that the services of the Respondent were

terminated illegally and the Respondent was thus directed to be reinstated in

service with back wages payable on the same basis on which he was being

paid during the period of his employment with the Management and that too

from the date of reference. When the matter came up for hearing on 12 th

August, 1998 before this Court though the operation of the impugned award

with respect to the back wages was stayed however, no stay in respect of

reinstatement in service was granted. Thus the Respondent was reinstated in

service on 9th October, 1998. During the course of the arguments learned

counsel for the Petitioner did not challenge the award to the extent it directed

reinstatement as the Respondent has already been reinstated and confined her

arguments to the extent the award directs payment of full back wages.

2. Learned counsel for the Petitioner contends that the Petitioner was

employed as daily wager on Muster Roll on 16th November, 1984 and he

abandoned his work from 15th October, 1985. Thus he worked nearly for a

period of 11 months. Belatedly a dispute was raised by the Respondent in

the year 1989 on which a reference was sent vide order dated 19th April,

1990, whereupon the impugned award came to be passed on 4 th July, 1997.

Relying on Ajaib Singh vs. The Sirhind Co-Operative Marketing Cum-

Processing Service Society Limited and Another, AIR 1999 SC 1351, Jagbir

Singh v. Haryana State Agriculture Marketing Board and Another, AIR 2009

SC 3004 and HMT vs. Labour Court, Ernakulam and others, LLR 1994 page

720 it is contended that even if the termination is found to be illegal, the

relief of reinstatement with full back wages does not follow automatically. It

is further contended that there was delay in raising the dispute of four years

and thus the Respondent is not entitled to full back wages.

3. Learned counsel for the Respondent refuted the contention that the

Respondent abandoned the job and states that his services were terminated

illegally and he was disallowed to join duties by an oral order on 15th

October, 1985 as the Respondent refused to attend the domestic work at the

house of the then Superintending Engineer. The Respondent approached the

department time and again to issue a certificate certifying his employment

and the period during which he remained employed and only after great

persuasion the certificate was obtained on 29th July, 1987. In October, 1987

the Respondent went to Calcutta to arrange funds to pursue his dispute

however, unfortunately he met with an accident causing serious damage to

his right leg which was crushed under the wheel of a truck. The Respondent

was initially admitted in Howrah Hospital, Kolkata and thereafter continued

his treatment at AIIMS. Only after that the Respondent could move around

with the help of the stick he approached the labour union which served the

notice dated 2nd September, 1989 and thereafter the reference was sent by the

Government. Thus there is no deliberate delay on account of the Respondent

in filing the claim and all these facts supported by the relevant documents

were cited by the Respondent in his supplementary application in the form of

an affidavit before the learned Industrial Tribunal. It is contended that there

being no delay in raising dispute, hence the order passed by the Tribunal is

justified.

4. I have heard learned counsel for the parties.

5. As noted above the only issue raised by the learned counsel for the

Petitioner is whether the Respondent is entitled to full back wages. A

perusal of the impugned award shows that the Respondent was directed to be

reinstated in service with back wages which was to be payable on the same

basis on which it was being paid during the period of employment with the

Management and that too from the date of reference. Thus the impugned

award takes care of the delay in raising the dispute and does not direct the

Petitioner to pay full back wages from the date of termination but granted the

same from the date of reference only.

6. In Talwinder Singh, vs. PO, Labour Court, (2003) 10 SCC 283 the

grievance of the workman/Appellant was that though he had put in 240 days

of service, his services were terminated without observing the due procedure

as provided under Section 25-F of the I.D. Act. He raised the industrial

dispute. The Labour Court dismissed the claim made by the workman. The

High Court also affirmed the same. The Hon'ble Supreme Court observed

that there was no material to show on what ground his services were

terminated. Thus, it directed the Respondent/Management to appoint the

workman afresh in similar employment and held that the workman would

not be entitled to any back wages.

7. In General Manager, Haryana Roadways v. Rudhan Singh, (2005) 5

SCC 591, it was held-

"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."

8. In U.P. State Brassware Corpn. Ltd. and another v. Uday Narain

Pandey, (2006) 1 SCC 479 their Lordships observed-

"17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.

44. In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya [(2002) 6 SCC 41 : 2002 SCC (L&S) 818] this Court noticed Raj Kumar [(2001) 2 SCC 54 : 2001 SCC (L&S) 365] and Hindustan Tin Works [(1979) 2 SCC 80 : 1979 SCC (L&S) 53 : (1979) 1 SCR 563] but held: (SCC p. 45, para 16) "16. As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum. Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement."

45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence."

9. In Reetu Marbles v. Prabhakant Shukla, (2010) 2 SCC 70 their

Lordships held-

"11. The only limited issue to be determined by us, in this appeal, is whether the High Court was justified in granting full back wages to the respondent in spite of the denial thereof by the Labour Court. In our opinion the High Court erred in law in not examining the factual situation. The High Court merely stated that it was not the case of the employer that the workman had been gainfully employed elsewhere. Although it noticed the principle that the payment of back wages having a discretionary element involved in it, has to be dealt with in the circumstances of each case and no straitjacket formula can be evolved, yet the award of the Labour Court was modified without any factual basis."

10. The Respondent was working as a daily wager on muster roll. He was

employed with the Petitioner for less than one year. The job on which the

Respondent was employed is easily available. There is yet another factor i.e.

delay in proceedings on the part of the Petitioner. A perusal of the order

sheet shows that initially the Petitioner was proceeded ex-parte vide order

dated 13th November, 1990 which order was set aside on 26 th February,

1991. Thereafter a number of adjournments were sought by the

representative of the Petitioner to cross-examine the workman. The

Petitioner took further time in producing its witness for cross-examination.

Thus it is evident that there has been delay on the part of the Petitioner

during trial. In view of the law laid by the Hon'ble Supreme Court and the

fact that there was delay on account of the part of the Petitioner, the