Delhi High Court
Delhi Transport Corporation vs Chander Mohan on 17 July, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P. (C) 10716/2005
+ Date of Decision: 17th July, 2012
# Delhi Transport Corporation ....Petitioner
! Through: Ms. Aarti Mahajan Shedha &
Mr. Gaurav Bisht, Advocates
Versus
$ Chander Mohan ...Respondent
Through: Mr. Atul T.N., Advocate
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J:
This writ petition has been filed by the petitioner(DTC)
challenging the award dated 16th February, 2004 passed by the
Labour Court holding the termination of the services of the
respondent-workman to be illegal and directing his
reinstatement in service with full back wages.
2. The facts leading to the filing of the said petition may be
noted briefly. The respondent-workman was appointed by the
petitioner as a conductor on 22nd September,1998. His
engagement was on temporary basis and he was working as a
daily wager from 23rd September, 1998 till 12th September, 2000
when his services were terminated.
3. In order to seek redressal of his grievance against the
termination of his services the workman-respondent had raised
an industrial dispute which in due course came to be referred for
adjudication to the Labour Court. The following was the term of
reference:
"Whether the orders of the management dated 12.9.2000
dispensing with services of Sh. Chander Mohan is illegal and/or
unjustified and if so, to what sum of money as monetary relief
along with consequential benefits in terms of existing laws/Govt.
Notifications and to what other relief is he entitled and what
directions are necessary in this respect?"
4. The learned Labour Court after perusing the evidence
adduced before it by the parties in support of their respective
stands came to the conclusion that respondent-workman had
worked for more than 240 days before the termination of is
services and therefore, the termination of his services by the
management without following the provisions of Section 25(F),
(G) & (H) of the Industrial Disputes Act, 1947 was illegal.
Feeling aggrieved, the management filed this petition for
quashing of the award of the Labour Court.
5. Ms. Aarti Mahajan, learned counsel for the petitioner did
not challenge the correctness of the conclusion of the Labour
Court that the respondent-workman had worked for more than
240 days with DTC and that the termination of his services
amounted to his retrenchment. However, she had strongly
contended that even if the termination of the services of the
respondent-workman had been found by the Labour Court to be
in contravention of the provisions of Section 25-F, G & H of
the Industrial Disputes 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 to
the workman some monetary compensation only could have
been awarded considering the fact that he was a daily wager and
had worked for less than two years with the petitioner.
6. Learned counsel for the respondent on the other hand fully
supported the award of the Labour Court and submitted that
since there was no perversity in the award of the Labour Court
this Court should not interfere in that award in exercise of writ
jurisdiction which has to be exercised only when the award of
industrial adjudicator is perverse or highly unreasonable.
7. The Supreme Court had in the case of "Senior
Superintendent Telegraph (Traffic), Bhopal, Vs. Santosh
Kumar Seal and others", 2010 (6) Supreme Court Cases 773
while considering the effect of 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)
8. Same view was taken by the Apex Court even in a case of
violation of Section 25-F & G in "Jaipur Development
Authority v. Ramsahai and Anr.", (2006) 11 SCC 684 and
in this 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........................"
(emphasis supplied)
9. In view of the aforesaid legal position laid down by the
Apex Court, the relief of reinstatement and back wages given to
the respondent-workman, a daily wager, cannot be sustained at
all and the discretion exercised by the Labour Court while
directing the management to reinstate the workman with full
back wages cannot be said to have been exercised reasonably.
10. 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- workman into that
of payment of compensation of ` 40,000/- to him. Parties are,
however, left to bear their own costs.
P.K. BHASIN, J
JULY 17, 2012
