Delhi High Court
Batra Hospital And Medical ... vs Biswambar Nayak on 1 February, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P.(C) 3562/2011
+ Date of Decision: 1st February, 2012
# BATRA HOSPITAL AND MEDICAL
RESEARCH CENTRE OF CH. ASHI
RAM BATRA PUBLIC CHARITABLE
TRUST ....Petitioner
! Through: Mr. Umesh Sharma, Advocate
Versus
$ BISWAMBAR NAYAK ....Respondent
Through: In person.
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J: (ORAL)
This writ petition was filed by the petitioner against the order
dated 6th April, 2011 passed by the Labour Court in the petition under
Section 10(4A) of the Industrial Disputes Act 1947, filed before it by
the respondent for challenging termination of his services by the
petitioner. Vide that order application for grant of some interim relief
to the respondent has been allowed and the petitioner has been
directed to pay to him seventy five per cent of his last drawn salary of
` 10,854 during the pendency of the claim petition from the date of
termination of his services.
2. Learned counsel for the petitioner has contended that there is no
doubt that the labour Court can grant an interim relief during the
pendency of the proceedings before it for the adjudication of an
industrial dispute either referred to it by the appropriate government or
raised directly before it by a workman by filing a petition under
Section 10 (4A) of the Industrial Disputes Act but before that is done
the workman has to show that he has a strong prima facie case. In the
present case the petitioner is opposing the grant of interim relief to the
respondent on the ground that though he was employed with it, but he
was not a workman as defined under the provisions of the Industrial
Disputes Act and therefore, the claim petition itself was not
maintainable before the labour Court. It has also been contended that
till this controversy regarding the status of the respondent as an
industrial workman is established there was no occasion for the labour
Court to have granted any interim relief to him. Another contention
raised was that the respondent's services had been terminated because
of the serious acts of misconduct committed by him during the
employment and though no domestic enquiry was conducted in
respect of the charges against him but the petitioner has a right to
establish even before the labour Court those charges of misconduct,
and, therefore for that reason also there is no justification for grant of
any interim relief to the respondent. Finally, it was also submitted that,
in any event, grant of seventy five per cent of last drawn wages to the
respondent cannot be said to be an interim relief but in fact it is the
full relief which has been given to the workman which he may not
have got even if he had succeeded finally.
3. The respondent has argued his case in person and he has
contended that there is no allegation of misconduct in the written
statement of the petitioner filed before the labour Court and, therefore,
there would be no occasion for the petitioner-management for
establishing any misconduct before the Labour Court. It has also been
contended that the labour Court's observation that, prima facie,
respondent was an industrial worker cannot be said to be wrong
because the same has been made after noticing the fact that as per the
documents placed on record by the respondent it was clear that though
he was designated as an executive at some time during his
employment but, in fact, he was assigned the duties by the petitioner
itself which were of clerical nature only. It was also submitted by the
respondent that this Court in any event cannot go deep into that aspect
while exercising writ jurisdiction under Article 226 of the Constitution
of India and there is no good reason to interfere with the discretion
exercised soundly by the labour Court by awarding him some interim
relief.
4. After having given due consideration to the submissions made
from both the sides I am of the view that as far as the observations of
the learned labour Court in the impugned order that prima facie, the
respondent-workman appeared to be an industrial workman
considering the fact that he was performing clerical duties is
concerned, the same do not appear to be unjustified justifying any
interference by this Court in exercise of its writ jurisdiction. As far as
the existence of prima facie case in favour of the respondent for grant
of interim relief is concerned, there is definitely a prima facie case in
his favour considering the fact that admittedly the services of the
respondent were terminated without any enquiry. The petitioner is not
contesting the respondent's claim before the labour Court on the
ground that his services had been terminated for misconduct and its
stand was that the respondent's services had been terminated in terms
of the contract of employment. In the written statement there are no
allegations of misconduct and nor is there any prayer made therein
that petitioner would be establishing the respondent's misconduct
before the labour Court itself.
5. As far as relief of seventy five per cent of last drawn wages
granted to the respondent is concerned, I am of the view that in respect
of this relief the grievance of the petitioner appears to be justified to
some extent and it appears that grant of seventy five per cent of the
last drawn wages as an interim relief appears to be little excessive.
6. This writ petition is accordingly disposed of by modifying the
impugned order to the extent that the respondent is now granted the
relief of fifty per cent of his last drawn wages as an interim relief. The
arrears of wages payable to the respondent shall now be cleared by the
petitioner within two weeks.
It is, however, clarified that nothing observed herein above shall
be considered to be an expression of any final opinion on the merits of
the case and as only a prima facie view has been taken and at the time
of final disposal of the matter the labour Court would arrive at its own
independent conclusions.
7. During the course of hearing of this matter, this Court had
directed the petitioner to deposit with this Court the entire amount
payable to the respondent under the impugned order. The petitioner
had challenged that order by filing an appeal before a Division Bench
and learned counsel for the petitioner informs that LPA was dismissed
but time for deposit was extended by one week. Counsel submitted
that now the petitioner may be permitted to get the bank draft, which
already stands got prepared in the name of the Registrar General
cancelled and to have it prepared in the name of the respondent. The
petitioner would be at liberty to do so.
P.K. BHASIN, J
FEBRUARY 01, 2012
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