Management Of Sri Guru Tegh ... vs Narender Kumar & Anr.
2012 Latest Caselaw 4113 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                          W.P. (C) NO. 3569/2005


+                                  Date of Decision:     13th July, 2012

#      MANAGEMENT OF SRI GURU TEGH
       BAHADUR HOSPITAL & ANR.                ....Petitioners
!                   Through: Ms. Ruchi Sindhwani, Advocate

                                 Versus

$      NARENDER KUMAR & ANR.               ...Respondents
                   Through: Mr. Anuj Aggarwal, Advocate

      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

                              JUDGMENT

P.K.BHASIN, J:

The petitioner has filed this writ petition under Articles 226 and 227 of the Constitution of India assailing the award dated 12th March, 1998 passed by the Labour Court in I.D. no. 207/95 whereby the termination of the services of respondent no.1-workman, who was employed as a nursing orderly in the Guru Tegh Bahadur Hospital (petitioner no.1) under the management and control of the Government of National Capital Territory of Delhi(petitioner no.2), was held to be illegal

and he was ordered to be reinstated in service with full back wages and continuity of service.

2. Brief facts in the background of which this petition had been filed by the petitioners may be noted at the outset. The respondent no.1- workman had joined the petitioner no.1 hospital on 22nd July, 1988 as a daily rated/casual/muster roll nursing orderly and he was paid minimum wages as fixed under the Minimum Wages Act for casual/unskilled workers. He raised an industrial dispute that his services had been terminated by the management of the hospital in violation of the provisions of Section 25-F,G & H of the Industrial Disputes Act, 1947(„the Act‟ in short). That dispute was referred for adjudication to the Labour Court by the appropriate Government. The term of reference was as under :

"Whether the services of Shri Narender Kumar have been terminated illegally and /or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. Labour Court after trial came to the conclusion that there was no contravention of the provisions of Section 25-F of the Act by the management as the respondent no.1-workman had not worked for 240 days with the petitioner no.1. That finding has not been challenged by the respondent no.1-workman. However, it was held by the Labour Court that there was violation of the provisions of Section 25-G & H of the Act and consequently the impugned award was passed in favour of the

respondent no.1-workman directing his reinstatement in service with full back wages as also continuity of service. The petitioners had felt aggrieved with that relief given to the respondent no.1-workman and so it filed the present writ petition.

4. Learned counsel for the petitioners had strongly contended and which contention was the main contention that even if the termination of the services of the respondent no.1-workman had been found by the Labour Court to be in contravention of the provisions of Section 25-G & H of the Act still the direction given for his reinstatement with full back wages should not have been given in the impugned award and if at all any relief was to be given some monetary compensation only could have been awarded. In support of this contention the counsel for the petitioners relied upon one judgment of the Hon'ble Supreme Court in the case of "Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal and Ors.", (2010) 6 Supreme Court Cases 773 . Counsel submitted that in the said case the concerned workmen, who had raised the industrial dispute about the illegal termination of their services, were engaged as casual workers and the industrial tribunal to which the dispute was referred for adjudication after coming to the conclusion that the services of the workmen were terminated in contravention of the provisions of Section 25-F of the Act directed their reinstatement in service with back wages. That award was affirmed by the High Court. However, when the matter reached the Supreme Court in appeal at the

instance of the employer the award of reinstatement and back wages was set aside and instead monetary compensation was granted to each workman. Relying upon this decision of the Apex Court learned counsel for the petitioners had argued that when even in case of termination of services of the workmen who had worked for much more than 240 days relief of reinstatement and back wages was not given by the Apex Court that relief given to the respondent no.1-workman here who had not even worked for 240 days was totally unreasonable and unsustainable and, therefore, interference was required in this petition by this Court.

5. The learned counsel for the respondent no.1-workman, on the other hand argued, relying upon some judgments of the Supreme Court, that the scope of writ jurisdiction of this Court while dealing with the awards of the industrial adjudicators in such like cases is very limited and only when the decision under challenge is perverse that the awards can be interfered with and in the present case the decision of the Labour Court does not suffer from the vice of perversity.

6. There is no dispute about the legal proposition laid down by the Supreme Court in the judgments cited by the learned counsel for the respondent no.1-workman that the High Court should be slow in interfering with the discretionary powers exercised by industrial adjudicators and, therefore, I need not refer to those judgments. However, in the present case the award of the Labour Court granting the relief of reinstatement and back wages to the workman who had not worked even

for 240 days with the petitioner no.1 is so unreasonable that it cannot be sustained.

7. As far as the finding of the Labour Court that there was contravention of Section 25-G & H of the Act is concerned the same being a pure finding of fact having been arrived at after proper appreciation of evidence adduced during the trial I am not going into the correctness thereof in this writ petition nor was any attempt made even by the learned counsel for the petitioners, an rightly so, to assail the same before this Court.

8. The Supreme Court in the case relied upon by the learned counsel for the petitioners (2010 (6) Supreme Court Cases 773) and in which there was termination of the services of some daily wagers in contravention of the provisions of Section 25-F of the Act had observed as under:-

"6. In last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate.

7. In a recent judgment authored by one of us (R.M. Lodha, J.) in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. (2009) 15 SCC 327 the aforesaid decisions were noticed and it was stated:

7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this

Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."

(emphasis supplied)

9. In "Jaipur Development Authority v. Ramsahai and Anr.", (2006) 11 SCC 684 the Supreme Court was concerned with the termination of the services of a workman in contravention of Section 25-

G & H of the Act and in that case also relief of compensation only was given after upholding the termination of services of the concerned workman to be illegal and setting aside the relief of reinstatement and back wages given by the Labour Court. The Supreme Court had observed that:

"28. We would, therefore, proceed on the basis that there had been a violation of Sections 25G and 25H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an Award of re- instatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11A must be exercised judiciously. The workman must be employed by a State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is

also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. Respondent had not regularly served appellant................It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be sub- served if instead and in place of re-instatement of his services, a sum of Rs.75,000/- is awarded to Respondent by way of compensation as has been done by this Court in a number of its judgments."

(emphasis supplied)

10. In view of the aforesaid legal position laid down by the Apex Court, the relief of reinstatement and back wages given to the respondent no.1-workman cannot be sustained. This petition is, therefore, allowed, but only partly by converting the award of reinstatement and back wages passed by the Labour Court in favour of respondent no. 1-workman into that of payment of compensation of ` 30,000/- to him. Parties are, however, left to bear their own costs of this petition.

P.K. BHASIN, J

JULY 13, 2012