Thai Airways International Ltd vs Govt. Of Nct Of Delhi & Ors.
2012 Latest Caselaw 527 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of Decision:   25.01.2012

+     W.P.(C) 80/2005

      THAI AIRWAYS INTERNATIONAL LTD .... Petitioner
                   Through: Mr. Lalit Bhasin, Ms. Ratna
                            Dhingra, Ms. Shreya S.
                            Dabas, Advs.
              versus

      GOVT. OF NCT OF DELHI & ORS.    ..... Respondents
                       Through: Mr. H.L. Tiku, Sr. Adv.,
                                Ms. Yashmeet, Adv. for
                                R-3 to 24.

+     W.P.(C) 2610/1991

      THAI AIRWAYS EMPLOYEES ASSN.        ..... Petitioner
                  Through: Mr. Lalit Bhasin, Ms. Ratna
                           Dhingra, Ms. Shreya S.
                           Dabas, Advs.
                  versus

      DELHI ADMN. & ORS          ........... Respondents
                  Through: Mr. H.L. Tiku, Sr. Adv., Ms.
                           Yashmeet, Adv. for R-3 to 24.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This order shall dispose of the above mentioned two writ

petitions. So far as the first writ petition bearing no.

WP(C) 80/2005 is concerned, the prayer is for setting

aside the award dated 13.02.2004 passed by respondents

No.2 in Industrial Dispute No.9/1992 holding the

termination of respondents No.4 to 24 (in the said writ

petition) as illegal and in violation of Section 9A of the

Industrial Dispute Act, 1947 and the settlement dated

21.06.1990 arrived at between the petitioner and the

respondent No.3, (Thai Airways Employees Association,

petitioner in the connected writ). It has been directed by

the award that the petitioner shall reinstate respondents

No.4 to 24 along with full back wages and continuity of

service.

2. So far as the writ petition bearing No.2610/1991 is

concerned, that has been filed by Thai Airways Employees

Association against Thai Airways International Ltd. namely

the employer for initiating action under Section 29 of the

Industrial Disputes Act, 1947 for having deliberately and

willfully failed to comply with the terms of settlement

dated June, 21, 1990 and in particular clause 43(4) of the

settlement and also for setting aside the communication

dated 15th June, 1991 written by Joint Labour

Commissioner to the President of the Association/

respondent no.3. It may be pertinent here to mention that

by virtue of the said letter, the Joint Labour Commissioner

had refused to take an action under Section 29 of the Act

against the petitioner on the ground that the respondent

no.3/Association had already raised an industrial dispute

about the same being arbitrary, uncalled and without

jurisdiction.

3. Briefly stating, the facts of the case1 are that the

petitioner is carrying on business as an international

airline by the name of Thai Airways. Respondent No.3

herein is known as Thai Airways Employees Association

which had raised a charter of demands on 01.11.1989 in

respect of which the petitioner and respondent

No.3/Association after considerable negotiations entered

Facts are being given in reference to the Writ Petition No.80/05

into a memorandum of settlement dated 21.06.1990

under Section 18 read with Section 2(p) of the Industrial

Disputes Act, 1947 before the Conciliation Officer.

According to Clause 43(4) of the said settlement,

employees other than permanent with the petitioner-

company at the time of signing of the settlement and

whose names were not appearing in the annexure were to

be issued a letter of probation for six months and the

management, i.e., the petitioner was to take a final

decision (regarding their continuation) within the said six

months. It is alleged that the management of the

petitioner company took a policy decision in December,

1990 to give the work of utility services and ground

handling work to M/s Cambatta Aviation Pvt. Ltd. Further,

as there were allegedly no regular vacancies or exigencies

of work, requiring engagement of casual/temporary

workmen, the petitioner as per the settlement and before

the expiry of six months period issued termination letter

dated 06.12.1990 to such of the employees who were

engaged on causal and temporary basis and who were

continuing on the basis of settlement. These employees

are respondents No.4 to 24 herein. It is alleged that all

statutory dues were paid to them, but purely on

humanitarian grounds the management of the petitioner-

company offered them work with M/s Cambatta Aviation

Pvt. Ltd. on the same terms and conditions on which they

were working for the petitioner with the continuity of

service rendered by them with the petitioner-company.

4. It is alleged that despite the fact that the services of

respondents-workmen were terminated, the management

of the petitioner-company was keen that the employees

should be absorbed by M/s Cambatta Aviation Pvt. Ltd.,

and accordingly, it wrote to respondents No.4 to 24 vide

letter dated 28.01.1991 intimating them that they may

join M/s Cambatta Aviation Pvt. Ltd. on receipt of the

letter. With a view to avoid unnecessary controversy and

in the interest of industrial harmony, the petitioner-

management decided to review its decision relating to the

stand taken by the association arising out of the

memorandum of settlement dated 21.06.1990 on the

ground that they did not want to join M/s Cambatta

Aviation Pvt. Ltd. It was clarified that the assumption by

the workmen that the management had committed breach

of the agreement by not issuing letter of probation for six

months was wrong as the fact remained that they were

treated, as if they were on probation for a period of six

months and a final decision was taken regarding the

workmen concerned in terms of Clause 43(4).

Accordingly, the petitioner-management vide letter dated

22.03.1991 revoked and superseded the earlier

communication of termination of services of respondents

No.4 to 24 dated 06.12.1990 and salary for the month of

January, 1991 to 31st March, 1991 being the wages for a

period of 3 months, were also dispatched to them by way

of retrenchment compensation. Respondents No.4 to 24

were again given a week‟s time to confirm whether they

would like to join employment with M/s Cambatta Aviation

Pvt. Ltd. They were accordingly advised to take up the

matter with the said aviation company. As the employees,

namely, respondents No.4 to 24 failed to join the services

of M/s Cambatta Aviation Pvt. Ltd., the petitioner-

company vide letter dated 30.04.1991 informed

respondents No.4 to 24 again that no work was available

with the petitioner-management and in case they are not

interested in joining the services of M/s Cambatta Aviation

Pvt. Ltd., the services of the workmen were being

retrenched. Thereafter, a notice of termination dated

01.05.1990 was sent to respondents No.4 to 24 along with

wages for the month of April and May, 1991 being the

notice pay and the retrenchment compensation etc. It is

accordingly alleged that the termination of services vide

letter dated 06.12.1990 in respect of which the present

reference has been made by the Conciliation Officer is bad

inasmuch as the association has not challenged the

effective and operative termination order dated

01.05.1991 as no dispute survived before the Industrial

Tribunal to adjudicate because letter dated 06.12.1990

was withdrawn. The dispute which was referred by the

Conciliation Officer to the Industrial Tribunal for

adjudication was framed as under:

"Whether the termination of the services of Shri S. Ashok Kumar, Ravi Chhetri, Balbir Singh, Ajit Singh, Banwari Lal Sharma, Ram Singh, Rajesh Bist, Rajendra Prasad Tiwari, Bhaskar Rao, Om Prakash, Pratap Chand, G. Baby Prakash, Amarjeet Rohtash, Mr. Aruna Arora, Ms. Soni Bakshi and Ms. Babita Sayal is illegal and/or unjustified and if, to what relief are they entitled and what directions are necessary in this respect?"

5. On the basis of the aforesaid reference, the learned

Industrial Tribunal held that the petitioner-company has

illegally terminated the services of respondents No.4 to 24

w.e.f. 06.12.1990 which was not only in violation of the

provisions of Section 9(A) of the Industrial Disputes Act

but also in violation of the memorandum of settlement

dated 21.06.1990 arrived at between the parties and

directed petitioners to reinstate respondents No.4 to 24

with full back wages and continuity of service.

6. The petitioner/employer feeling aggrieved by the said

directions has chosen to file the writ petition bearing

No.80/2005 assailing the award dated 13.02.2004. In the

connected writ petition bearing No.2610/1991, the

employees/association has sought implementation of the

award by praying for prosecution of Thai Airways under

Section 29 of the Industrial Disputes Act, 1947. It has

also prayed for setting aside the letter dated 15.6.1991

issued by the Labour Department to the respondent

no.3/Association on the ground of the same being

arbitrary and unreasonable.

7. I have heard Mr.Lalit Bhasin and Mr.H.L.Tiku, the learned

senior counsel for the petitioners and the respondents,

respectively.

8. Mr.Bhasin, the learned counsel for the petitioner has

contended that the Award dated 13.02.2004 passed by

the Industrial Tribunal is based on an erroneous

interpretation of law that the termination of services of the

respondent no. 4 to 24 was in violation of Section 9A of

the Industrial Disputes Act, 1947. It was contended by the

learned counsel for the petitioner that as a matter of fact

there is not even a whisper by the respondent nos. 4 to 24

that there is any violation of Section 9A of the Industrial

Disputes Act, yet the Industrial Tribunal has passed the

Award on erroneous assumption that Section 9A of the Act

has been violated. It is contended that Section 9A of the

Act is applicable only when there is a subsisting

relationship of employer and the employee but in the

present case the said Section is not applicable as the

respondent no.4 to 24, whose services were terminated by

the petitioner w.e.f. 06.12.1990 were not permanent

employees of the petitioner. It is further contended that

this was followed by letters dated 28.01.1991,

22.03.1991, 30.04.1991 and finally by letter dated

01.05.1991 terminating their services by way of

retrenchment which did not amount to change in service

conditions as envisaged in (IV) Schedule of the Industrial

Disputes Act.

9. Elaborating this submission further, it was submitted by

the learned counsel that respondent Nos.4 to 24 were

admittedly employed by the petitioner as casual workers

whose services were originally terminated vide order

dated 06.12.1990, and thereafter, the said termination

was revoked vide letter dated 28.01.1991. So far as the

salary on account of revocation letter dated 28.01.1991 is

concerned, it was stated that the salary for the month of

January, 1991 to 31.03.1991 was remitted to the

workmen. The services of the respondent nos. 4 to

24/workmen were ultimately retrenched vide letter dated

01.05.1991 and they were duly paid retrenchment

compensation in accordance with the provisions of

Industrial Disputes Act, 1947. Their services were

terminated on the ground that the ground handling work

which was being carried out by the said respondents was

actually outsourced to M/s Cambatta Aviation Pvt. Ltd.

and they had written to the respondents/workmen and

given them an option that they can join the services of

M/s Cambatta Aviation Pvt. Ltd. on account of termination

of their services by the present petitioner but the

respondent nos. 4 to 24 did not accept the said offer.

The learned counsel for the petitioner has placed reliance

in this regard on the judgment of the Apex Court in case

titled Robert D'souza Vs. Executive Engineer,

Southern Railway & Anr. (1982) 1 SCC 645.

10. It has also been contended by the learned counsel for the

petitioner that the respondent nos.4 to 24 have not

challenged the termination dated 01.5.91. In view of the

fresh termination order having been issued on 01.5.91 the

letter dated 06.12.90 had become infructuous, and

therefore, the reference itself was not maintainable. It has

been stated that the respondent nos.4 to 24 continued to

be in the services of the present petitioner till 31.05.1991

and were duly paid wages upto the said date by the

present petitioner which fact cannot be denied by them.

It was also contended by the learned counsel for the

petitioner since the respondent nos. 4 to 24 were

employed as casual labourers they were not entitled to the

same benefits to which a regular employee was entitled.

11. It has been lastly contended by the learned counsel for

the petitioner that the respondents nos. 4 to 24 were

getting `30/- per day in terms of the order dated

12.01.2006 passed by this Court and an amount of

`2,07,738.95/- has been paid to each respondent upto the

month of April, 2009 by virtue of direction under Section

17B of the Act. It is prayed that the directions be issued

to them to refund the said amount at the time of allowing

of the petition.

12. Mr. H. L. Tiku, the learned senior counsel for the

respondents vehemently contested the pleas raised by the

learned counsel for the petitioner. It has been contended

by Mr. Tiku that the termination/retrenchment of service

of respondent nos. 4 to 24 was in violation of the

procedure laid down under Section 9A of the Industrial

Disputes Act, 1947 and item 10 of the IV Schedule which

lays down that rationalization, standardization or

improvement of plant or technique which is likely to lead

to retrenchment of workmen will be treated as a change in

the conditions of service. It was contended that Section

9A of the Act postulates no employer who proposed to

effect any change in the conditions of service applicable to

any workman shall effect such a change without giving a

notice to the workman likely to be affected by such

change and admittedly so far as the present case is

concerned, no notice was ever given to the respondent

nos. 4 to 24. Thus, the termination of services of

respondent nos. 4 to 24 is illegal and hence the same is

liable to be set aside. Reliance is this regard has been

placed on the judgments of the Apex Court in case titled

Workmen of the Food Corporation of India Vs. Food

Corporation of India (1985) 2 SCC 136, Lokmat

Newspapers Pvt. Ltd. Vs. Shankar Prasad (1999) 6

SCC 265.

13. With regard to the contention of the learned counsel for

the petitioner that the notice of termination dated

06.12.1990 was recalled by the petitioner on 22.03.1991

and therefore, a reference to the said notice of

termination dated 06.12.1990 is bad or infructuous, it was

submitted that a perusal of the letter dated 22.03.1991

where notice dated 06.12.1990 was allegedly revoked

would show that the revocation of notice was not to the

effect that the termination dated 06.12.1990 stands

withdrawn and the respondent nos. 4 to 24 would

continue to join and report for the duty of the petitioner.

On the contrary, the alleged revocation was to the effect

that the termination dated 06.12.1990 is revoked subject

to the condition that the respondent nos. 4 to 24 shall join

a different entity, namely, M/s Cambatta Aviation Pvt. Ltd.

It was contended that a revocation which was conditional

on the respondent nos. 4 to 24 joining a different entity

where they were not employed cannot be said to be a

revocation at all and such a revocation is inconsequential.

14. So far as the question of second termination is concerned,

it was contended that the question of second termination

would arise only when the first termination has been

withdrawn rightfully. It was stated that the alleged

revocation, of the earlier termination letter, dated

22.03.1991 was neither bona fide nor intended to be

acted upon, and therefore, is of no consequence.

15. Lastly, it was contended that it is a settled law that an

employer cannot change the service conditions of an

employee, without employee‟s concurrence. Employer

cannot force an employee to join a different entity,

without the consent of the employee. Thus, any decision

of the petitioner directing the respondent nos. 4 to 24 to

join M/s Cambatta Aviation Pvt. Ltd. is illegal and cannot

be relied as the respondent nos. 4 to 24 never agreed to

join M/s Cambatta Aviation Pvt. Ltd. The services of the

workmen were terminated on 06.12.1990, thus no

occasion arose for the petitioner to ask the respondents

to join M/s Cambatta Aviation Pvt. Ltd. Reliance was

place on Sindhu Resettlement Corporation Ltd. Vs.

Industrial Tribunal Gujarat AIR 1968 SC 529.

16. On the basis of the aforesaid submissions, it has been

contended that the order passed by the Industrial Tribunal

is perfectly valid and justified, and accordingly, does not

suffer with any infirmity so as to call for any interference

from this Court.

17. I have considered the submissions made by the respective

sides and have gone through the record.

18. The sole question which arises for consideration in the

instant case is as to whether the respondent nos. 4 to 24

are entitled to protection of Section 9A of the Industrial

Disputes Act, 1947 which prohibits an employer from

changing the condition of service without following the

process prescribed under the said Section. If the answer

to the aforesaid question is not in affirmative then the

question arises that whether the respondent nos. 4 to 24

are entitled to retrenchment compensation on account of

the termination of their services by the petitioner

company. In order to appreciate this question, it would be

pertinent here to reproduce Sections 9A and 25F of the

Industrial Disputes Act, 1947:

"9A. Notice of change.- No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,--

(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or

(b) within twenty- one days of giving such notice: Provided that no notice shall be required for effecting any such change--

(a) where the change is effected in pursuance of any 1[ settlement or award]; or

(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply."

"25F. Conditions precedent to retrenchment of workmen

No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) The workman has been given one month‟s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days‟ average pay [ for every completed year of continuous service] or any part thereof in excess of six months; and

(c) Notice in the prescribed manner is served on the appropriate Government [for such authority as may be specified by the appropriate Government by notification in the Official Gazette]."

19. It is not in dispute in the instant case that the respondent

nos. 4 to 24 were employed as casual labourers with the

petitioner company. It is also not in dispute that in terms

of the settlement dated 21.06.1990, it was agreed

between the parties, namely, the employer and the

employees (respondent nos. 4 to 24) as under:

"43. Miscellaneous

1) ............

2) ...........

3) ............

4) The parties agree that those employees who are not permanent with the Company at the time of signing this Settlement and are not mentioned in the Annexure will be issued a letter of probation for six months. The Management will take a final decision regarding such employees within the said six months.

5) ...........

6) ............

7) .............

8) ...........

9) .............."

20. A perusal of the Clause 43(4) clearly shows that the

employees who were not permanent and whose names

were not appearing in annexure were to be issued a letter

of probation for six months and the management was to

take a decision within six months. There is no dispute

that respondent nos. 4 to 24 were not permanent

employees nor were their names appearing in Annexure,

therefore, in their case latter procedure was applicable.

According to this procedure, a letter of probation was to

be issued within six months of signing the settlement as

well as the decision was also to be taken within six

months. Meaning thereby that issuance of letter of

probation as well as the continuation of the services had

to be decided within six months. If that be so then the

issuance of letter of probation itself becomes an empty

formality. This precisely has been the submission in

essence by Mr. Bhasin that vide letter dated 06.12.1990

the services of the respondents were terminated as a

policy decision was taken by the petitioner to transfer the

utility services to M/s Cambatta Aviation Pvt. Ltd. In my

opinion Section 9A of the Act was enacted to protect the

service conditions of only the permanent employees and

not of every daily wagers or the casual labourers unless

and until special conditions like the one in Food

Corporation of India‟s case, prevailed.

21. The objective of Section 9A of the Act has been explained

by the Apex Court in case titled The Management of

Indian Oil Corporation Ltd. Vs. Its Workmen AIR

1975 SC 1856:

"The real object and purpose of enacting Section 9A seems to be to afford an opportunity to the workmen to consider the effect to the proposed change and, if necessary, to represent their point of view on the proposal. Such consultation further serves to stimulate a feeling of common joint interest of the management and workmen in the industrial progress and increased productivity. This approach on the part of the industrial employer would reflect his harmonious and sympathetic co-

operation in improving the status and dignity of the industrial employee in accordance with egalitarian and progressive trend of our industrial jurisprudence, which strives to treat the capital and labour as co-sharers and to break away from the tradition of labour‟s subservience to capital."

22. There is another aspect of the matter. One of the

essential of pleadings is that before a finding is returned

on question of facts by a court or a tribunal, not only

there must be a pleading but there must also be a prima

facie proof of the same and only then a submission in

this regard can be urged. In the instant case since there

was no pleadings by the respondent nos. 4 to 24

regarding violation of Section 9A of the Industrial

Disputes Act, 1947, consequently, the submissions of the

respondents itself was untenable. This is de hors the

fact that Section 9A of the Act as has been observed

would be applicable only to permanent employees and

not to daily wagers or casual employees or even to

temporary employees who are not sure as to whether

they would be asked or required by the employer to

attend the work on the next day.

23. In case titled International Airport Authority of India

Vs. International Air Cargo Workers' (2009) 13 SCC

374 in somewhat similar circumstances the question of

applicability of Section 9A had arisen. In that case the

International Airport Authority of India (hereinafter

referred as „IAAI‟) by an agreement had granted the

licence to M/s Air Freight Pvt. Ltd. (referred herein after

as „Air Freight‟) to be a ground handling agent in respect

of export, import and transshipment of cargo and

consignment. It was required to pay a licence fee of the

total revenue realized by it to IAAI. Under the

agreement, Air Freight also had to engage a number of

workers for handling the cargo and be responsible for the

payment of the wages to them. It was entitled to

receive payment from the owners of the cargo for work

done.

24. In 1985, the IAAI decided to take over the ground

handling work, and thereafter, gave the same to a new

licensee by inviting competitive tenders, and it

accordingly, terminated the licence of Air Freight. The

workers/loaders/packers employed by the Air Freight

made a request to IAAI to provide them employment

who had them in casual employment for some time,

purely as a temporary measure and on humanitarian

ground. Subsequently, the workers formed a cooperative

society to which the contract of ground handling of the

cargo was given again as a temporary measure. On

these facts, three questions arose for consideration of the

Apex Court, one of which was as to whether the status of

workers/loaders/packers employed or engaged in the

cargo handling work, allegedly & illegally on being

changed from direct casual labourer to contract labourer,

is in violation of the Section 9A of the Industrial Disputes

Act, 1947.

25. While dealing with this issue, the Supreme Court ruled

that notice of change under Section 9A of the Industrial

Disputes Act, 1947 was required only if the employer

wanted to change the service condition of its workmen

with regard to the matters enumerated in the 4 th

Schedule of the Act. Applying the principle in this

regard, the Court held that the workers were specifically

put on notice that their casual employment was purely on

ad hoc basis only as a humanitarian measure and it was

to be continued only till the terms of contract labour was

negotiated and finalized with the society. This was

recorded by the Court while dismissing the writ petition

filed by the workers Union. The workers were not

entitled to put forth with the condition contrary to the

proposal/scheme of IAAI recorded by the High Court, and

accordingly, the question of violation of Section 9A of the

Industrial Disputes Act, 1947 did not arise. The

Supreme Court observed that section 9A of the Industrial

Disputes Act, 1947 is not applicable to them.

26. Similarly, in the facts of the present case also the

respondent nos. 4 to 24 were not the permanent

employees of the petitioner/company. They were only

working as casual workers/daily wagers and the only

obligation which was cast on the petitioner was that they

would put the said respondents on probation for a period

of six months and would also take a decision within six

months as to whether to regularize their services or not.

Thus, like in International Air Cargo Workers Case they

were put to notice that their service could be

discontinued within six months from the date of the

settlement as a decision had to be taken by the

petitioner management within that period. Further,

even if, for the sake of arguments, it is assumed that no

formal order of putting the respondent on probation was

passed by the petitioner it did not prevent the petitioner

to take a decision regarding their continuance and in

case their services were discontinued, it could only be

done by termination of their services for which the

respondents at best were entitled to retrenchment

compensation under Section 25F of the Act. But despite

this the petitioner company as a measure of model

employer and purely on humanitarian ground gave ample

opportunity to the respondents to join the services of an

organization to which the ground handling services were

transferred.

27. In the present case also, the petitioner terminated the

services of the respondent nos. 4 to 24 vide letter dated

06.12.1990, w.e.f. 10.12.1990. Vide letter dated

28.01.1991, it was informed to the respondent nos. 4 to

24 that while negotiating the contract for transfer of

utility services with M/s Cambatta Aviation Pvt. Ltd. they

had been able to get them agreed to employ all the

casual employees working with the petitioner. It was

stated that they have still not resumed their duties and in

case they do not join them, it will be presumed that they

are not interested in the same.

28. By virtue of a letter dated 22.03.1991 after giving the

detailed background of the facts, it was decided by the

petitioner to revoke all previous termination letters etc.

and dispensed with their services w.e.f. 01.04.1991 and

the previous letter dated 06.12.1990 was withdrawn and

the salary for the month of January to 31.03.1991 was

sent to them. Since both these letters did not elicit a

favourable response from the workers, the petitioner

sent yet another letter on 30.04.1991 advising them to

join M/s Cambatta Aviation Pvt. Ltd. as the work had

been transferred by the petitioner to the said party, and

it was informed to them that otherwise the petitioner

would be constrained to retrench their services. Finally

vide letter dated 01.05.1991, the services of the

respondents were retrenched and the compensation in

lieu of notice period was sent to them.

29. No doubt, the said termination did not follow the period

of notice as is required or envisaged under Section 25F of

the Industrial Disputes Act, 1947, and therefore, the

respondents are entitled to retrenchment compensation

in terms of Section 25 F of the Industrial Disputes Act,

1947. The petitioner has stated that while issuing a

fresh termination letter on 01.05.1991, a cheque amount

being an amount of the salary for the month of May as

well as retrenchment compensation was sent to the

respondents which they failed to accept. In my

considered opinion, if they failed to accept the

retrenchment compensation, then they were doing so at

their own peril and it could not be said that the petitioner

was at fault. It may also be pertinent here to mention

that the Supreme Court in case titled Hindustan

Petroleum Corp. Ltd. Vs. Ashok Ranghba Ambre

(2008)2 SCC 717 has drawn a distinction between

regularization and permanency in the service/labour

jurisprudence in the public employment law which has

become an essential component of the Industrial

Relation Laws in India. The Apex Court in the said case

observed that while the Court may pass a direction for

regularization of service on account of completion of

probation but it did not mean that the services of the

employee which are regularized becomes permanent.

On the contrary, it has been observed that if a workman

has regularly been appointed as workman for more than

240 days in a calendar year, then just preceding the date

of his termination, he is entitled for retrenchment

compensation under Section 25F of the Industrial

Disputes Act, 1947. In the instant case also the

petitioner had terminated the services of the respondent

nos. 4 to 24 w.e.f. 01.05.1991 as the respondents had

failed to accept the offer of taking an alternative

employment with M/s Cambatta Aviation Pvt. Ltd. which

was given to them purely on humanitarian ground, and

therefore, at best they are entitled to only retrenchment

compensation as their case was that they had been

working with the petitioner company for different periods

which was admittedly more than 240 days. Supreme

Court in D.Souza's case (supra) has made a distinction

in the notice required to be served under Section 9A and

Section 25F of the Act. In the instant case, the petitioner

was only under an obligation to give a notice under

Sector 25F of the Act and/or to give compensation in lieu

of the notice period.

30. Mr. Tiku, the learned senior counsel for the respondents

had placed reliance on two judgments, Food Corporation

of India and Lokmat Newspaper Pvt. Ltd. (Supra) to

support this submission of Section 9A of the Act being

violated by the petitioner. The question involved in the

Food Corporation‟s case was whether by cancelling the

direct payment system and introducing the contractor for

the payment of wages and thus changing the mode of

payment was falling within the meaning of item I of the

Fourth Schedule of the Industrial Disputes Act, 1947 and

tantamounted to altering the conditions of service of the

workers without a notice of change being given under

Section 9A of the Act. The answer to this question was

given in affirmative. But so far as the facts of the present

case are concerned, they are distinguishable. In the

instant case, a settlement had been arrived at between

the association of the workmen and the petitioner

wherein a decision was to be taken regarding the

continuance or discontinuance of their services. Since the

petitioner had taken a policy decision to hand over the

ground clearing facilities to M/s Cambatta Aviation Pvt.

Ltd. obviously it has resulted in termination simplicitor or

retrenchment of the workmen. It was in this context that

the termination of the services of the respondent nos. 4

to 24 could not be construed as a change of their

conditions of services and the only requirement was to

comply with Section 25F of the Act. Similarly, in Lokmat‟s

case (supra) the Apex Court had held that commissioning

of new machines by the management of the newspaper

at Nagpur and Jalgaon and consequent transfer of the

workmen from one place to another amounted to

introduction of rationalization, standardization or

improvement of plant or technique within the meaning of

item 10 of the Schedule IV and consequently required

compliance with the requirement of Section 9A of the

Act. But so far as the present case is concerned, there

are certain distinguishable features from the facts of the

reported case. In the present case, the workers were the

daily wagers. Secondly the settlement itself authorized

the petitioner to take a decision either to continue or

discontinue their services. Thirdly, the said decision was

to be taken within six months and a conscious decision

was taken not to continue with their services which in my

view did not amount to change in the conditions of

service warranting compliance of Section 9A of the Act.

In addition to this, the settlement in this regard

constituted due notice to the respondent/workmen.

31. It may also be pertinent here to mention that during the

course of hearing of the arguments, the respondent nos.

4 to 24 were also asked as to whether they would like to

work with the petitioner company as the company had

been persuaded to reconsider their stand and permit

gainful utilization of the services of some of their ex-

employees. In this regard, though Mr. Lalit Bhasin, the

learned senior counsel for the petitioner had accepted

the offer and was willing to consider the names of such of

the employees who were prepared to work with the

petitioner company, but to the utter dismay of the Court,

the respondent nos. 4 to 24 were not at all prepared to

serve the petitioner company or any of their other

subsidiary. This clearly shows that the entire effort of the

respondent nos. 4 to 24 is to continue to reap the benefit

in terms of the relief under Section 17B of the Industrial

Disputes Act, 1947, and also taking the anticipated

amount of arrears of pay and allowances, in the event of

the order of Industrial Tribunal being upheld as binding

yet continuing their present employment with different

employers. The Court cannot be oblivious to the fact

that a person whose services were terminated long back

would not continue to sit idle and yet survive.

32. In my considered opinion such an unethical practice only

bleeds the company and shows that the entire thrust of

the respondent nos. 4 to 24 was to get some kind of

permanent compensation from the petitioner company.

I have been informed by the learned counsel for the

petitioner that till now they have already paid an amount

of more than Rs.2,50,000/- to each of the employees

(respondent nos. 4 to 24), by way of compliance with the

grant of interim relief under Section 17 B of the

Industrial Disputes Act, 1947. The petitioner company

was even prepared to offer the reasonable amount of

retrenchment compensation, keeping in view the fact

that at the time when they left the services of the

petitioner company, their daily wage was a mere sum of

Rs.30 per day yet this offer was not accepted.

33. I am of the considered opinion that the respondent nos.

4 to 24 are trying to take undue advantage of their

situation by continuing to get the benefit of Section 17B

of the Industrial Disputes Act, 1947 and yet not coming

forward to work or to accept the proposal to work with

the ground handling agency. In view of the aforesaid

reasons, I feel that the award passed by the Tribunal

setting aside the termination of services of the

respondent nos. 4 to 24 is illegal, erroneous and

unsustainable in the eyes of the law, and accordingly, the

same is set aside. Since the writ petition of the

petitioner bearing no. 80/2005 has been allowed and the

award dated 13.02.2004 directing the reinstatement of

the respondent nos. 4 to 24 has been set aside,

therefore, the necessary consequence of the same is that

the writ petition bearing no. 2610/1991 filed by the

respondents nos. 2 to 5 is dismissed on the ground that

no such direction can be issued to the respondents in the

said case, namely, the Labour Department, to seek

prosecution of the petitioner company for not having

complied with the industrial award dated 13.02.2004

directing the reinstatement of the respondent nos. 4 to

24, accordingly, the said writ petition is dismissed.

34. The award dated 13.02.2004 directing the reinstatement

of the respondent nos. 4 to 24 has been set aside. The

question which would now arise is as to the orders which

are to be passed regarding the disbursal of the amount

purported to have been deposited by the petitioner

company with the Registrar General of this Court as well

as what is to happen with the amount released to the

respondent nos. 5 to 8, 12, 14, 15 and 23 in terms of the

Section 17B of the Industrial Disputes Act, 1947. Before

passing any such order, it may be pertinent here to refer

to the order dated 24.10.2005 passed by this Court

which has noted the fact that the petitioner company has

deposited a sum of Rs.9,16,000/- stating to be

equivalent to 25% of the awarded amount. It was

observed by that order as under:

"The Registry is directed to place the amount deposited by the petitioner in a fixed deposit receipt initially for a period of one year which shall be kept renewed till further orders of this court.

It is, however, made clear that the accrual on the fixed deposit receipt, in the event of the petitioner finally succeeding in the writ petition, shall be released in favour of the Delhi High Court Legal Services Authority at the time of final disposal of the writ petition."

35. Since the award of the Industrial Tribunal has been set

aside and the petitioner had deposited an amount of

Rs.9,16,000/- which is purported to have been kept in a

fixed deposit, I am of the considered opinion that not only

the principal amount but the accrual of interest thereon

ought to be released to them notwithstanding the

observation passed by this Court earlier that the accrual of

interest on the principal amount shall be deposited by the

petitioner with the Delhi High Court Legal services

Committee. The reason for release of the interest to the

petitioner itself is being done on account of the fact that it

will be unfair to the petitioner that although they succeed

in the writ petition yet they must be made suffer

financially by losing the interest on the capital amount,

having been deposited by them in compliance to the order

passed by this Court. I, therefore, direct that the entire

amount of Rs.9,16,000/- along with the interest thereupon

be released to the petitioner. So far as the benefit

granted to the respondent nos. 5 to 8, 12, 14, 15 and 23

in terms of the order dated 17.11.2005 in pursuance to

Section 17B of the Industrial Disputes Act, 1947 is

concerned, I am of the view that the aforesaid benefit has

been granted to the workmen for the purpose of

sustenance and living during the pendency of the writ

petition when the employer has challenged the award in

the High Court and obtained stay against reinstatement.

It may also be pertinent here to mention that in the order

dated 17.11.05 this Court had directed that the last drawn

wages or the statutory minimum wages whichever

is higher be paid to the respondent nos. 5 to 8, 12, 14, 15

and 23. I feel, if one reads the Section 17B of the

Industrial Disputes Act, 1947, it only makes a provision for

release of the „last drawn wages‟, to the workman unlike

the order dated 17.11.2005, passed by this Court

regarding higher of the two amount. Since, the amount

has been released to the respondent nos. 5 to 8, 12, 14,

15 and 23 only by way of subsistence allowance, the same

cannot be ordered to be refunded. However, the interim

order dated 17.11.2005 stands vacated. With these

observations the writ petition bearing no. 80/2005 is

allowed, while as the cross writ petition bearing no.

2610/1991 is dismissed.

V.K. SHALI, J.

JANUARY 25, 2012 „anb‟/KP