Gujarat State Export Corporation ... vs Mukesh Tyagi & Anr.
2013 Latest Caselaw 4209 Del

$~R-68
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 1929/2000
                            Decided on 17th September, 2013

       GUJARAT STATE EXPORT CORPORATION LTD. ..... Petitioner
                    Through: Mr. Suryakant Singla, Adv.
                    versus

       MUKESH TYAGI & ANR.                               ..... Respondents
                    Through:          None.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. By this writ petition under Article 226 of the Constitution of India,

petitioner has challenged the Award dated 12th November, 1999 passed by

the Industrial Tribunal, II, Tis Hazari, Delhi whereby petitioner has been

directed to reinstate respondent no.1 with full back wages as per the

Minimum Wages Act, 1948 applicable to the respondent and fixed by the

Government from time to time. Petitioner was also directed to pay the

wages within three months failing which to pay interest @ 12% per annum

on the accumulated wages.

2. Respondent no.1 claimed that he was engaged by the petitioner as a

Typist on 8th September, 1987. He continued to work with the petitioner for

a period of one and a half year when his services were illegally terminated

on 16th April, 1989. His last drawn wages were `900/- per month. His

services were terminated when he demanded his legal entitlements, i.e,

wages for weekly holidays and other gazetted holidays as well as over time

for the period 15th March, 1988 to 30th September, 1988. Demand notice

dated 15th May, 1989 served by respondent no.1 on the petitioner, did not

bring any fruitful results, thus, respondent no.1 approached the Labour

Department, Govt. of NCT of Delhi for redressal of his grievances which

resulted in reference of disputes by the Secretary (Labour) to Industrial

Tribunal in the following terms:-

Whether the termination of services of Shri Mukesh Tyagi is illegal and/or unjustified and if so, to what relief is he entitled and what directions are entitled and what directions are necessary in this respect?

3. Petitioner filed written statement and opposed the claim of respondent

no.1. Petitioner claimed that respondent no.1 was engaged as a casual

worker for a specific period on 8th September, 1987 on daily wages. He was

engaged as a Typist. Services of respondent no.1 were terminable at any

time or on the expiry of specified period. Representative of petitioner at

Delhi could have recruited the staff only on casual and ad hoc basis.

Petitioner was having a pavilion for exhibition in Pragati Maidan, New

Delhi wherein under the various schemes of Government, exhibitions used

to be held for public from time to time. Office of the petitioner at Delhi was

purely a temporary office and the staff was deputed on temporary posts on

daily wages. Whenever the exhibition used to be over the services of the

temporary staff used to be automatically terminated. Respondent no.1 was

also engaged in connection with the exhibition work. Respondent no.1

joined as a regular B.Com student in a college affiliated with Delhi

University, therefore, used to come late in the office. He also used to work

unauthorizedly, with Karnataka Government Pavilion at Pragati Maidan

against payment of wages. In any case, when the work of the petitioner was

over respondent no.1 was informed in the first week of March, 1989 that his

services would not be required after 15th April, 1989. Delhi branch of the

petitioner was practically closed down as it decided to operate from Gujarat

Office only.

4. Issues were framed on 27th May, 1992. Thereafter, parties were

afforded opportunity to lead evidence. Upon scrutiny of evidence led by the

parties Industrial Adjudicator has, inter alia, returned a categorical finding

that services of respondent no.1 were terminated illegally. It was also held

that respondent no.1 had succeeded in proving that he had continuously

worked with the petitioner for more than 240 days in a year preceding his

termination. Industrial Adjudicator was of the view that since the services

of respondent no.1 were terminated without complying the provisions of

Section 25F of the Industrial Disputes Act, 1947 (for short, hereinafter

referred to as "the Act") termination was void ab initio. Judicial notice of

the fact that petitioner had closed down its activities at Pragati Maidan, New

Delhi was also taken but it was observed that documents placed on record

indicated that closure of Gujarat Pavilion was on 12th February, 1996 but

services of respondent were terminated in the month of April, 1989;

meaning thereby that petitioner had not closed down his activities at the time

of termination of services of respondent no.1. Industrial Adjudicator

concluded that since provisions of Section 25F of the Act were not complied

with, the termination was bad in law and respondent no.1 was entitled to be

reinstated with full back wages.

5. Industrial Adjudicator has returned the finding of facts upon scrutiny

of evidence led by the parties and, in my view, the same cannot be interfered

with by this Court in exercise of its powers of judicial review under Article

226 of the Constitution of India on re-appreciation of evidence. It is not the

case that findings are based on no evidence. If findings are based on some

evidence the same cannot be interfered with. During the course of hearing

learned counsel for the petitioner has failed to point out any manifest error

of law or jurisdiction in the findings of facts returned by the Industrial

Adjudicator.

6. However, I find force in the contention of learned counsel that

reinstatement with back wages is not an automatic consequence wherever

termination is held illegal on the ground of non-compliance of Section 25F

of the Act or otherwise. Grant of such relief depends on facts of each case.

Lump sum compensation in certain cases depending upon the length of

service and other incidental circumstances is an appropriate relief which can

be accorded to the workman. In this case petitioner was having its office at

Pragati Maidan, New Delhi for holding exhibitions, which obviously was

not a permanent feature. Respondent no.1 was engaged as a casual worker

and worked only for one and a half year. The Award was passed in the year

1999, i.e, after 9 years of termination. In these circumstances, in my view,

the compensation would have been the appropriate relief to meet the ends of

justice more so when judicial notice of the fact has been taken by the

Industrial Adjudicator about closure of Delhi office.

7. In Assistant Engineer, Rajasthan Dev. Corporation and Anr. Vs.

Gitam Singh, (2013) II LLJ 141 SC, Supreme Court has taken the similar

view and held that reinstatement of workman with continuity of service and

25% of back wages was not proper in the facts and circumstances of the case

and the compensation of `50,000/- (Rupees Fifty Thousand Only) shall

meet the ends of justice. In the said case, workman had worked for about

eight months. The Supreme Court referred to several judgments for taking a

view that reinstatement was not automatic, merely because the termination

was found to be illegal or in contravention of Section 25-F of the Act. In

Talwara Co-operative Credit and Service Society Limited vs. Sushil Kumar

(2008) 9 SCC 486, Supreme Court held thus, "grant of a relief of

reinstatement, it is trite, is not automatic. Grant of back wages is also not

automatic". A Single Judge of this Court in Sub Divisional Officer vs. Babu

Lal & Ors. MANU/DE/1860/2013, held that reinstatement of workman with

25% of back wages, who had worked for three years was not justified and

awarded compensation of `1 lac in lieu of reinstatement and back wages.

8. In Senior Superintendent Telegraph (Traffic), Bhopal vs. Santosh

Kumar Seal and Others, (2010) 6 SCC 773, Apex Court held thus, "In the

last few years it has been consistently held by the Supreme 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."

In the said case, keeping in mind that workmen were engaged as daily

wagers about 25 years back and they worked hardly for two or three years,

relief of reinstatement with back wages was not found justifiable and instead

monetary compensation for `40,000/- (Rupees Forty Thousand Only) was

considered sufficient to meet the ends of justice. In Jagbir Singh vs.

Haryana State Agriculture Marketing Board and Anr. AIR 2009 SC 3004,

Supreme Court held thus, "that by catena of decisions in recent time, this

Court has clearly laid down that an order of retrenchment passed in violation

of Section 25F 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." In the said case, Supreme Court awarded `50,000/- (Rupees

Fifty Thousand Only) as compensation keeping in mind the total length of

service rendered by the workman was short and intermittent.

9. In the light of above discussions, impugned Award is modified to the

extent that petitioner shall pay `60,000/- to the respondent towards

compensation. Writ petition is disposed of in the above terms.

A.K. PATHAK, J.

SEPTEMBER 17, 2013 ga