Krishan Chander Gopal Singh & Anr. vs P.O., Labour Court No. 1 Delhi & ...
2012 Latest Caselaw 6732 Del

$~R52
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 1672/1998
                                       Decided on: 26th November, 2012

      KRISHAN CHANDER GOPAL SINGH & ANR.                     ..... Petitioner

                             Through   Mr. Vikram Saini, Adv.

                    versus
      P.O., LABOUR COURT NO. 1 DELHI & ANR.                 ..... Respondent

Through Mr. KamalMehta, Adv. for R-2.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J (ORAL)

1. By the present petition the Petitioners impugne the award dated 7th

January, 1998 whereby despite their termination being held to be illegal and

unjustified, the learned Trial Court did not direct reinstatement with back

wages and only held that the Petitioners were entitled to a compensation

from the Respondent considering their services, wages and their intention

not to join the services offered by the management vide Ex.WW1/X-1.

2. Learned counsel for the Petitioner contends that having held that the

termination was illegal and unjustified the only relief the learned Trial Court

could have granted to the Petitioners was of reinstatement with back wages.

Reliance is placed on Sindhu Resettlement Corporation Ltd. Vs. Industrial

Tribunal of Gujarat and Ors. AIR 1968 SC 529; Hindustan Steels Ltd.,

Rourkela Vs. A.K. Roy & Ors. AIR 1970 SC 1401; Mohan Lal Vs. The

Management of M/s. Bharat Electronics Ltd. AIR 1981 SC 1253 and

Surendra Kumar Verma & Ors. Vs. Central Government Industrial

Tribunal-cum-Labour Court, New Delhi and Anr. AIR 1981 SC 422. It is

also stated in the petition which has been urged before this Court that four

persons junior to the Petitioners were re-employed and no such employment

were given to the Petitioners.

3. Learned counsel for the Respondent contends that admittedly even as

per the Petitioners they were daily wager and has worked for less than 2

years with the Respondent. Thus, the only question was of payment of

retrenchment compensation under Section 25F of the Industrial Disputes Act

(in short the ID Act). Thus the Petitioners were entitled to one months

notice or one month's pay in lieu of notice and 15 days average pay for the

two years i.e. total of wages for two months whereas they have been

awarded compensation which is highly escalated. Further the re-

appointment of persons junior to the Petitioners has been denied in the

counter affidavit. The Petitioners were admittedly daily wagers and in view

of the decision in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC

1 no regularization could have been ordered and what could not have been

done directly could not have been achieved indirectly by way of granting the

Petitioners reinstatement. It is contended that there is no illegality in the

impugned award and hence no interference is required by this Court.

4. I have heard learned counsel for the parties. Briefly the facts leading

to the filing of the present petition are that the Petitioner No.1 herein i.e.

Krishan Chander Gopal Singh was appointed as record keeper-cum-helper

peon and the Petitioner No.2 Dinesh Singh was appointed as record

attendant on 5th November, 1983. By an office order dated 23rd July, 1985

the services of all daily wagers/ contract employees were terminated with

effect from 31st July, 1985. The Petitioners raised a dispute on which the

following terms of reference were sent for adjudication:

"whether the termination of services of Shri Krishan Chander Gopal Singh, Ram Naresh and Dinesh Singh is illegal and/or unjustified and if so, to what relief are they entitled and what directions are necessary in this respect?"

5. The claim of the Petitioners was that they were appointed as daily-

wagers from 5th November, 1983 and there was nothing adverse against

them during this period. The wages were paid as per their attendance and

they were also subscribers towards the contributory provident fund. The

Petitioners had completed 1 year and 269 days of continuous service without

any break. Thus, the termination was illegal, unjustified, arbitrary and mala-

fide.

6. The case of the management before the Trial Court was that the

Central Government was the appropriate Government for the purposes of

making the reference. Since the Petitioners were not sponsored by the

Employment Exchange and were employed as daily-wagers for the specific

period in view of the holding of the Festival of India by the management,

their services were terminated as they became surplus. It is further stated

that no post was vacant against which the claimants could be employed.

During the pendency of the proceedings the Respondent was proceeded ex-

parte vide order dated 22nd July, 1994 and failed to adduce any evidence.

Thereafter, the Petitioners also failed to appear on 24th October, 1977 and

hence the reference was reserved for award.

7. The unrebutted and unchallenged evidence of the Petitioners on

record was that they were appointed on daily wages from 5th November,

1983 and their services were terminated by a letter dated 23 rd July, 1985

with effect from 31st July, 1985. The learned Tribunal held that the said

termination amounted to retrenchment as the same was in non-compliance

of Section 25F of the ID Act, 1947. Since there is no challenge to the

impugned award by the Respondent, the said finding has become final.

Thus, the only issue before this Court is whether on the termination being

held illegal, the Petitioners are entitled to reinstatement with back wages and

whether the learned Trial Court committed any error in granting

compensation in lieu of reinstatement with back wages.

8. In Jagbir Singh Vs. Haryana State Agricultural Marketing Board and

Anr. (2009) 15 SCC 327 their Lordships held that there is no doubt that the

earlier view of Supreme 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 the recent past there has been a shift in the legal position and in

a long line of cases the Supreme 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. An order of

retrenchment passed in violation of Section 25F although may be set aside

but an award of reinstatement should not be automatically passed.

Compensation instead of reinstatement would meet the ends of justice. The

Supreme Court clearly laid down the distinction between a daily wager who

does not hold the post and a permanent employee.

9. In the present case, admittedly the Petitioners were not holding any

permanent post. They were daily wagers and had not even completed two

years of service. Further there is no post available for regular employment

with the Respondent and the Petitioners were employed for holding the

programmes of festivals. It may be noted that during the pendency of the

proceedings, the Respondent even offered appointment to the Petitioners on

4th April, 1988 with Hal Marking Council, an autonomous independent

body. The terms of appointment were as per the routine terms by any

Government authority, however the Petitioners failed to give their

acceptance. In view thereof and in view of the Petitioners being daily

wagers, length of service and the last wages earned, the learned Trial Court

in respect of Dinesh Singh directed payment of full back wages to the

workman from the date of termination i.e. 1st August, 1985 till 4th April,

1988 when the offer for an alternate appointment was made to them. As

regards Krishan Chand Gopal Singh it was directed that the Petitioner was

entitled to compensation of Rs. 40,000/- considering his services, wages and

intention not to join the services. I find no infirmity in the impugned award.

10. The petition is dismissed.

(MUKTA GUPTA) NOVEMBER 26, 2012 'ga'