Shri Desh Raj vs Mcd
2012 Latest Caselaw 837 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 7th February, 2012

+                          LPA No.99/2012

%        SHRI DESH RAJ                                         ....Appellant
                           Through:      Mr. Anuj Aggarwal, Adv.

                                    Versus
         MCD                                              ..... Respondent
                           Through:     Ms. Mini Pushkarna & Ms. Prerna
                                        Verma, Adv. for MCD.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                  JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The challenge in this Intra-Court Appeal is to the judgment dated 8th July, 2011 of the Learned Single Judge allowing W.P.(C) No.887/1996 preferred by the respondent MCD impugning the award dated 1 st September, 1994 of the Industrial Adjudicator directing the respondent MCD to reinstate the appellant workman in service with full back wages save for the period 1st December, 1987 to 15th April, 1988.

2. This appeal has been preferred after a delay of 212 days and is accompanied by an application for condonation thereof. The reason stated for the delay is that the appellant workman was unable to muster resources to prefer the present appeal. We are not satisfied with the reason given in as much as the averment is vague without any particulars and do not find the same to be a sufficient cause for condoning the delay. However to satisfy

our judicial conscience we have also looked into the merits.

3. The undisputed facts are that the appellant workman had worked as a daily rated casual muster roll worker with the respondent MCD from 9 th November, 1987 till 30th November, 1987 and thereafter from 16 th April, 1988 to 29th November, 1988. He raised a dispute that his services were illegally terminated. The Industrial Adjudicator in the award dated 1st September, 1994 (supra) held, that the services of the appellant workman were required on regular basis; that the break in service w.e.f. 1st December, 1987 to 15th April, 1988 was in colourful exercise and thus the termination was in violation of Sections 25F, G &H of the Industrial Disputes Act, 1947 and accordingly directed reinstatement with back wages except for the period from 1st December, 1987 to 15th April, 1988.

4. The Learned Single Judge has held that since no protest had been lodged with respect to the break from 1 st December, 1987 to 15th April, 1988 and no claim for wages for the said period also had been made, the said break could not be said to be a colourful exercise and the finding of the Industrial Adjudicator to the said effect was perverse. It was further held that the appellant workman from 16 th April, 1988 till 29th November, 1988 had not completed 240 days of employment and hence Section 25F supra could not be attracted. Accordingly the award was set aside. The Learned Single Judge while setting aside the award also noticed that though as condition to the order under Section 17B of the I.D. Act passed during the pendency of the writ petition the appellant workman was required to file affidavits every three months indicating whether he was gainfully employed or not, but had not filed the said affidavits. Inference of the appellant workman being gainfully employed elsewhere was thus drawn.

5. The learned counsel for the appellant workman before us has fairly conceded that Section 25F is not attracted since the appellant workman had not completed 240 days of employment. The argument however is that Sections 25G & H of the I.D. Act which do not require an employee to have completed 240 days of employment have been violated in as much as the respondent MCD was required to first retrench the workman last employed in that category and before employing any other person ought to have offered employment to the appellant workman. Reliance in this regard is placed on Harjinder Singh v. Punjab State Warehousing Corp. (2010) 3 SCC 192.

6. Though the Supreme Court in Harjinder Singh (supra) was also concerned with the work charge motor mate but on a perusal of the award of the Industrial Adjudicator we find that though the termination was held generally to be in violation of Sections 25F, G & H of the I.D. Act but neither is there any reference to the facts constituting violation of Sections 25G & H nor any finding returned in this regard. In fact the claim of the appellant workman before the Industrial Adjudicator was predicated on his having completed 240 days of employment and one Shri Jagjit Singh having been employed in his place. Rather the Industrial Adjudicator has in the award recorded that no names of any juniors who were stated to have been retained in service were given. We thus do not find any case of violation of Sections 25G & H also to have been established. Mention may also be made of the fact that the casual workers are hired as per their availability and there is nothing to show that the appellant workman had offered himself after 29th November, 1988 or any protest had been lodged in this regard. We are also mindful of the fact that the reinstatement of the appellant workman can at

best be as a casual worker only and which to our mind now after nearly 25 years of the date when the appellant workman had last worked with the respondent MCD does not make any sense and may unsettle the hierarchy. The appellant workman already has enjoyed the 17B wages for a long period of nearly 13 years without filing any affidavit as required of his non- employment and which in any case is highly unlikely.

7. In the entirety of the facts aforesaid, we are satisfied that no injustice had been done to the appellant workman by setting aside of the award of the Industrial Adjudicator.

8. The appeal is accordingly dismissed. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

FEBRUARY 7, 2012 'pp'..