Delhi High Court
Asha Verma vs Ceat Ltd. on 5 December, 2012
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) No. 7802 of 2008
% Reserved on: 13th September, 2012
Decided on: 5th December, 2012
ASHA VERMA ..... Petitioner
Through: Mr. Anuj Aggarwal and Mr. M.M.
Saquib Ali, Advocates.
versus
CEAT LTD. ..... Respondent
Through: Mr. Sandeep Narain and Ms. Shalu
Lal, Advocates.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the present petition the Petitioner impugns the award dated 23rd
July, 2008 whereby though the termination of the Petitioner was held to be
illegal however, she was granted a lump sum compensation of Rs. 1.75 lakhs
instead of reinstatement and back wages.
2. Learned counsel for the Petitioner states that the Petitioner had
rendered 24 years of service with the Respondent and had categorically
stated that she was not gainfully employed after she was terminated despite
her best efforts as she attained the age of 45 years. As during the pendency
of the proceedings before the learned Trial Court she attained the age of
superannuation however, the learned Trial Court only awarded a paltry sum
of Rs. 1.75 lakhs instead of back wages. The trial lasted for more than 17
years for no fault of the Petitioner. The case of the Respondent before the
Trial Court was of termination simplicitor and thus it cannot state that the
alleged misconduct of the Petitioner of habitual absenteeism be taken into
consideration for computing the compensation. Reliance is placed on
Devender Kumar vs. Union of India and others, MANU/DE/2033/2012 (DB
Delhi) to contend that there is a difference between "misconduct
reinstatement" and "illegal termination". Further in view of the law laid
down in Banarasi and others vs. Ramphal, 2003 (9) SCC 606 in the absence
of cross writ petition finding of the labour Court in favour of the workman
cannot be disturbed. Relying on Nar Singh Pal vs. Union of India and
others, 2000 (3) SCC 588 it is contended that the non-crucial evidence
cannot be taken into consideration for any purpose whatsoever. Referring to
Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour)
and others, 1984 (4) SCC 635 it is contended that if the workman is
unemployed then reinstatement with back wages should be awarded. The
learned Trial Court failed to consider the factors laid down for awarding
back wages/compensation in General Manager, Haryana Roadways vs.
Rudhan Singh, 2005 (5) SCC 591. The factors in favour of the Petitioner are
that she worked for 24 years, was a regular employee and there is no cross-
examination to this fact by the Management, 15 years of service was still left
when she was terminated and despite her best efforts it was difficult to get an
alternative employment at the age of 45 years. In Jitendra Singh Rathor vs.
Shri Baidyanath Ayurved Bhawan Ltd. and another, 1984 (3) SCC 5 it was
held that the denial of back wages amounts to punishment. This Court in
exercise of its supervisory jurisdiction under Article 226 can grant the back
wages which have been denied by the learned Trial Court as held in Novartis
India Ltd. vs. State of West Bengal and others, 2009 (3) SCC 124. In
Gammon India Limited vs. Niranjan Dass, AIR 1984 SC 500 their Lordships
held that in case of superannuation, workman is entitled to full back wages,
increments, due bonus, interest and cost. Even in cases where charges were
held to be proved though trivial and the workman was not on duty for 21
years, the Hon‟ble Supreme Court granted a compensation of Rs. 10 lakhs in
lieu of the reinstatement in Management of Aurofood Pvt. Limited vs. S.
Rajalu, 2009 (2) SCC (L & S) 368. All statutory dues were not given at the
time of termination and only retrenchment compensation was given. Thus
the compensation of Rs. 1.75 lakhs be enhanced to full back wages with
increments.
3. Learned counsel for the Respondent on the other hand contends that
this was a case of contractual appointment whereby the Petitioner was
appointed vide order dated 26th September, 1967. As per the appointment
letter, the services of the Petitioner were terminable on one month‟s notice or
salary in lieu thereof. Thus, even if no misconduct is proved the Respondent
was within its rights to terminate the services of the Petitioner at any point of
time with one month‟s notice. All statutory dues, that is, one months notice,
salary etc. was given at the time of termination. The learned Trial Court in
view of the long tenure of the Petitioner and the last drawn salary of Rs.
5,000/- awarded compensation of Rs. 1.75 lakhs. Reliance is placed on
Harjinder Singh vs. Punjab State Warehousing Corporation, 2010 (3) SCC
192, M/s Estralla Rubber vs. Dass Estate (Pvt.) Limited, AIR 2001 SC 3295
and CHD Developers Limited vs. Rajinder Prasad, 2009 II CLR 447 to
contend that the scope of interference in a writ petition is very limited to see
that there is no illegality or perversity committed by the learned Trial Court.
For the last drawn salary of 5,000/-, a compensation of Rs. 1.75 lakhs is
adequately sufficient which has been paid to the Petitioner. Reliance is also
placed on Divisional Controller, Gujarat SRTC vs. Kadarbhai J. Suthar,
2007 (10) SCC 561 to contend that merely because the Management did not
challenge the order of reinstatement it does not lead to the conclusion that it
has accepted any illegality in the departmental proceedings. Hence the writ
petition be dismissed.
5. I have heard learned counsel for the parties.
6. The Petitioner was appointed with the Respondent on 26th September,
1967 and her services were terminated on 16th August, 1991. The
termination letter reads as under:
"Regstd. AD & Under Certificate of Posting
16th August, 1991
Mrs. Asha Verma
„B‟ Division Clerk,
Delhi District
Dear Madam,
Re: Termination of service on grounds of continued ill-
health.
From your attendance record, we find that you have been
remaining away from work on grounds of ill-health frequently
as is evident from the statement below:
Calendar No. of Actual days No. of days Remarks
Year working worked by you were
days you away on
available in medical
the year grounds
1988 250 days 102½ days 99 ½ days Transferred to
Meerut
District w.e.f.
21.11.88.
Although
availed joining
time from
14.11.88 but
did not report
for work at
Meerut.
Allowed to
rejoin at Delhi
from 24.4.89
1989 249 days 97 ½ days 57 ½ days
1990 249 days 71 days 195 days
1991** 148 days 41 days 97 days
**1.1.91 to 31.7.91
The seriousness of your ill-health has been brought to your notice a
year ago in our letter to you dated 22nd August, 1990, but there has
been no improvement at all thereafter, and you have been remaining
absent frequently for short spells and long spells on account of your ill
health. It is, therefore, abundantly clear that you are suffering from
continued ill-health. It is expected of an employee to remain
medically fit always so that his/her utility to the Company is assured.
Hence we regret we cannot continue you in our employment any
longer as you have ceased to be of use to the Company.
Therefore, we hereby inform you that your services are terminated
with immediate effect.
You are offered one months‟ salary in lieu of notice and this amount is
sent to you vide our cheque no. 909592 dated 16.8.1991 for Rs.
5,056.00 (Rupees five thousand fifty six only).
Your legal and other dues are being settled separately.
Yours faithfully
Sd/-"
7. Though the case of the Respondent before the Trial Court was that it
was a termination simplicitor in view of the contract however, it may be
noted that the order of termination was clearly a stigma. No inquiry was
conducted prior to the termination regarding the misconduct of absence for
short and long spells. The learned Trial Court came to the conclusion that if
the Management has terminated the services of the workman on the ground
of continuous absence from duty, the Management ought to have given an
opportunity to the workman to explain her absence from duty and a domestic
inquiry should have been conducted by the Management prior to the
termination of the services of the workman. Neither any charge sheet was
issued to the workman nor was any domestic inquiry conducted. Hence the
termination was in violation of the principles of natural justice and hence
illegal. I find no infirmity in the order to that extent and further this finding
of the Trial Court has not been challenged by the Respondent. Reliance of
the Respondent on the decision of the Divisional Controller, Gujarat SRTC
(supra) is wholly misconceived as in the said case it was noted that the
workman admitted the legality and the proprietary of the inquiry held against
him. Thus the only issue before this Court is whether an adequate
compensation has been granted or not to the Petitioner. In Jagbir Singh vs.
Haryana State Agricultural Marking Board and another, 2009 (15) SCC 327
their lordships held:
"17. While awarding compensation, a host of factors, inter
alia, manner and method of appointment, nature of employment
and length of service are relevant. Of course, each case will
depend upon its own facts and circumstances."
8. In the present case no retrenchment compensation was paid. Since the
Petitioner had rendered 24 years of service she was at least entitled to one
year‟s salary as retrenchment compensation. Further the contention of the
learned counsel for the Respondent that she was paid for the period of her
absence has also been denied because that was adjusted against the leave of
the Petitioner. The contention of the learned counsel for the Respondent
before this Court that this was a contractual appointment is wholly erroneous
as no such plea has been taken before the learned Trial Court. No doubt that
an agreement was entered into between the parties, however, contractual
appointment is generally for a specific period and does not continue for 24
years with stipulation that it can be terminated on one month‟s notice at any
time. In the case in hand the Petitioner worked with the Respondent for 24
years and retrenchment compensation was not paid. The misconduct of the
Petitioner cannot be a factor to be looked into for computing the
compensation as contended by the learned counsel for the Respondent as the
misconduct has not been proved by way of a disciplinary inquiry.
Considering the length of service and the fact that no inquiry was conducted
and no retrenchment compensation was paid, it is an ideal case where the
Petitioner is entitled to wages till the date of her superannuation.
9. Learned counsel for the Respondent has strenuously contended that
since there is no illegality in the order of the learned Trial Court awarding
compensation of Rs. 1.75 lakhs and the reinstatement with back wages not
being the thumb rule, this Court will not interfere in the order of the Trial
Court. It may be noted that despite noting the length of service, illegal
termination and the fact that no retrenchment compensation was given, the
learned Trial Court awarded only Rs. 1.75 lakhs as compensation which
exercise was not judiciously performed. Hence this order requires
interference. It is, therefore, directed that the Petitioner be paid full back
wages from the date of termination till the date of superannuation, that is,
from 16th August, 1991 to 27th November, 2007 by the Respondent. The
amount be paid within eight weeks failing which it will entail an interest @
9% per annum till the date of realization.
10. Petition is disposed of.
(MUKTA GUPTA)
JUDGE
DECEMBER 05, 2012
'vn'
