Delhi High Court
Delhi Transport Corporation vs The Presiding Officer, ... on 25 March, 2014
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on March 25, 2014
+ W.P.(C) 6201/1998
DELHI TRANSPORT CORPORATION
..... Petitioner
Represented by: Mr.U.N.Tiwary, Advocate
versus
THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL NO. 1 AND
ANR.
..... Respondents
Represented by: None
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)
1. The challenge in this writ petition by the Delhi Transport
Corporation is to the award dated October 17, 1996 passed by the
Industrial Tribunal in I.D. No. 189/94 whereby the Industrial Tribunal
has held the termination of the services of the respondent No. 2 as illegal
in violation of Section 25-F and 25-G of the Industrial Disputes Act,
1947 ('Act', in short) and directed his reinstatement with continuity of
service and full back wages.
2. It may be stated here that the petitioner was served before the
Industrial Tribunal and the petitioner also had put in appearance. It
appears that the petitioner did not file a written statement to the claim
petition filed by the respondent No. 2. Subsequently, because of non-
appearance, the petitioner was proceeded ex parte.
3. The case of the respondent No. 2 in his claim petition was that he
was initially appointed on May 01, 1989 as a daily rated Retainer Crew
Driver. His services were terminated on January 21, 1991 in an illegal,
improper and arbitrary manner. It is further alleged that he was again
appointed a Retainer Crew Driver vide order dated September 29, 1991
and his services were again terminated on March 05, 1993 under para 4
(XIV) of the Executive Instructions regarding employment of Retainer
Crew Driver.
4. Since the petitioner was proceeded ex parte, the Industrial
Tribunal, on the basis of the affidavit filed by the respondent No. 2
agreed with the contentions raised by the respondent No.2 that his
termination was in violation of Section 25-F and 25-G of the Act, and
granted the reliefs as has been reflected above.
5. I note that in the present petition, the petitioner has not stated the
reasons for which, it was proceeded ex parte. The challenge to the award
is on the merit of the conclusion of the Industrial Tribunal. According to
the learned counsel for the petitioner, the engagement of the respondent
No.2 was as a Retainer Crew Driver, which is not a regular appointment,
but, as a daily wager or need basis. It would not give any right to the
Retainer Crew Driver to hold the said post on regular basis. Further, it is
his contention that on a perusal of the claim petition filed by the
respondent No.2, no names of the persons junior to him have been given,
who were retained in the service even after his termination.
Alternatively, the learned counsel would plead that if at all, there was a
violation of Section 25-F of the Act, the respondent No.2, at the most,
would be entitled to the compensation and not reinstatement with full
back wages and continuity in service, as has been granted by the
Industrial Tribunal. In this regard, he would rely upon the judgment of
the Supreme Court in the case reported as (2013) 5 SCC 136, Assistant
Engineer, Rajasthan Development Corporation and Another Vs. Gitam
Singh.
6. No-one appears for the respondent No.2.
7. Having heard the learned counsel for the petitioner, I note that the
respondent No.2 was appointed as a Retainer Crew Driver and was being
paid on daily wage basis. Further, I note that the total period of
engagement of the respondent No.2 was in two phases for a period
roughly about one and a half years each. Be that as it may, I find from
the perusal of the claim petition and the affidavit filed by the respondent
No.2, insofar as the allegation of persons junior to him, having been
retained, the respondent No.2, in para 10, has averred as under:
"The above order is discriminatory and biased
since some of his juniors with the same terms and
conditions are still in job".
Similar are the averments in the affidavit. In the absence of names of the
juniors, the Industrial Tribunal could not have held, Section 25-G of the
Act has been violated. Further, I note that the order of the termination of
the respondent No.2 was in terms of para 4 (XIV) of the Executive
Instructions regarding employment of Retainer Crew Driver. The said
order does not specify that while dispensing with the services of the
respondent No. 2, the compensation as required under Section 25-F of
the Act has been paid to the respondent No.2. As conceded by the
learned counsel for the petitioner, it is a case where the petitioner has not
followed the provisions of Section 25-F of the Act while terminating the
services of the respondent No.2. It is not necessary, where the provisions
of Section 25-F have not been followed, the reinstatement with full back
wages and continuity of service should automatically follow. The
Supreme Court in the case of Senior Superintendant Traffic, Bhopal Vs.
Santosh Kumar Seal and Ors., (2010) 6 SCC 773 has held that the relief
by way of reinstatement with full back wages is not automatic even if
termination of an employee is found to be illegal or any contravention of
the of the prescribed procedure and with monetary compensation in lieu
of reinstatement and back wages in cases of such nature may be proper.
8. In Assistant Engineer, Rajasthan Development Corporation
(supra) relied upon by the learned counsel for the petitioner, the
Supreme Court has held as under:
"4. It is not in dispute that respondent was engaged
as a daily wager. The Labour Court, Bharatpur, in its
award dated 28.06.2001 has recorded the findings
that the respondent had worked as technician (Mistri)
under the appellant for 240 days for the period from
01.03.1991 to 31.10.1991 and the termination of his
service by an oral order on 31.10.1991 was violative
of Section 25-F of the ID Act. We are not inclined to
disturb the findings recorded by the Labour Court;
we take them to be correct. The question, as noted
above, is whether direction for reinstatement of
respondent with continuity in service along with 25 %
of back wages in view of the above findings is just and
proper?
5. More than five decades back, this Court in Assam
Oil Company Limited, New Delhi v. Its Workmen
observed that the normal rule in cases of wrongful
dismissal was reinstatement but there could be cases
where it would not be expedient to follow this normal
rule and to direct reinstatement. Having regard to the
facts of that case, this Court set aside the order of
reinstatement although dismissal of the employee was
found to be wrongful and awarded compensation. In
Hindustan Steels Ltd. Vs. A.K.Roy this Court noted
that there have been cases where reinstatement has
not been considered as either desirable or
expedient".
The Supreme Court in the above-said case, after referring to the law with
regard to the grant of compensation, has granted a compensation of `
50,000/- to the respondent.
9. Keeping in view the facts of this case that the respondent No. 2
had worked only for the period of one and a half years in two different
spells, that too, between the year 1989 to 1993 and 21 years have elapsed
since then, and the respondent No. 2 has got the benefit of Section 17-B
of the Act, I am of the considered view that the respondent No. 2 is only
entitled to compensation in lieu of reinstatement with full back wages
and continuity of service. I quantify ` 40,000/- as compensation to be
given to the respondent No. 2 in this case. The award of the Industrial
Tribunal dated October 17, 1996 passed by the Industrial Tribunal in I.D.
No. 189/94 is modified to this extent. I direct the petitioner-Corporation
to pay an amount of ` 40,000/- to the respondent No. 2 within a period of
two months from today, on failure, interest @ 9 % per annum shall be
paid.
10. The writ petition is disposed of accordingly.
11. No costs.
(V.KAMESWAR RAO)
JUDGE
MARCH 25, 2014/akb
