Delhi High Court
Dipankar Paul vs M/S. Consulting Engineering ... on 14 July, 2015
Author: V.P.Vaish
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20th May, 2015
% Date of Decision: 14th July, 2015
+ W.P.(C) 6930/2012
DIPANKAR PAUL ..... Petitioner
Through: Mr. R.P. Sharma, Advocate.
versus
M/S. CONSULTING ENGINEERING SERVICES
(INDIA) PVT. LTD. .....Respondent
Through: Mr. Jivesh Chandrayan,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
JUDGMENT
1. By way of the present petition the petitioner has impugned the
order dated 06.05.2011 passed by the learned Presiding Officer,
Labour Court-V, Karkardooma Courts, Delhi in Misc. Application
No.11/2010 (Unique case ID No.02402C0381962010), whereby the
claim filed by the petitioner was dismissed on the ground of limitation.
The petitioner has also challenged the order dated 29.09.2012 passed
by learned Labour Court whereby an application filed by the petitioner
for setting aside the order dated 06.05.2011 was dismissed as not
maintainable.
2. The brief facts as culled out from the petition are that the
petitioner was working as a Computer Operator with the respondent
since the year 2000 as a „Daily Wager‟. In the year 2007, the
petitioner was issued regularization/ confirmation letter dated
30.05.2007 and was promoted to the post of Computer Operator Gr.-II
(Grade A-9) w.e.f. 01.04.2007. The petitioner was again promoted in
the year 2008 to the post of Assistant Secretary Gr.-II (Grade A-8).
3. On 29.06.2009, the respondent issued an office order stating that
since the project is getting over, the staff is requested to take leave
unless any new project is on the way. The employees were assured
that their salaries would be remitted to their bank account vide same
letter. But vide letter dated 01.07.2009, respondent terminated services
of the petitioner from the date of completion of notice period i.e.
31.07.2009 without making payment of earned wages and other dues
of the petitioner.
4. Aggrieved by the action of the respondent, the petitioner served
a demand notice dated 23.07.2009 and thereafter filed a statement of
claim on 17.07.2010 before the Labour Court. Vide impugned order
dated 06.05.2011, learned Labour Court dismissed the claim of the
petitioner as barred by limitation. The petitioner then moved an
application for setting aside of order dated 06.05.2011 which was
dismissed by the learned Labour Court vide order dated 29.09.2012.
5. Learned counsel for the petitioner contended that the services of
the petitioner were terminated vide letter dated 01.07.2009 (Annexure
A-1) from the date of completion of notice period i.e. 31.07.2009 and
the claim filed by the petitioner on 17.07.2010 is within the prescribed
period of limitation. The termination was to take effect on 31.07.2009.
6. Learned counsel for the petitioner further submitted that the
earned wages were not paid along with the letter dated 01.07.2009 and
the earned wages were credited to the account of the petitioner on
27.08.2009.
7. Per contra, learned counsel for the respondent urged that the
services of the petitioner were terminated vide letter dated 31.07.2009
and the petitioner was directed to contact accounts department for full
and final settlement of his dues after furnishing no objection
certificate/ handing over note. The petitioner did not approach the
accounts department. According to the counsel for the respondent the
services were terminated on 01.07.2009 and the statement of claim was
filed by the petitioner on 17.07.2010 which is barred by limitation.
8. I have heard the learned counsel for the parties and have also
carefully perused the material on record.
9. The short issue involved in this petition for consideration is, as
to which date termination of services be effected from, the date of
issuance of notice of termination i.e. 01.07.2009 or the date of
completion of notice period of one month?
10. Before entering into the merits of the contention of the parties, it
is necessary to reproduce Section 25F of the Industrial Disputes Act,
1947 (hereinafter referred to as „ID Act‟), which reads as under: -
"25F. Conditions precedent to retrenchment of workmen. -
No workman employed in any industry who has been in
continuous service for not less than one year under an employer
shall be retrenched by that employer until-
(a) the workman has been given one month‟s notice in
writing indicating the reasons for retrenchment and the
period of notice has expired, or the workman has been
paid in lieu of such notice, wages for the period of the
notice;
(b) the workman has been paid, at the time of retrenchment,
compensation which shall be equivalent to fifteen days‟
average pay for every completed year of continuous
service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the
appropriate Government or such authority as may be
specified by the appropriate Government by notification
in the Official Gazette."
11. The underline object of Section 25F of the ID Act is two-fold.
Firstly, a retrenched employee has one month time to have at his
disposal to search for alternate employment and secondly, the
workman must be paid retrenchment compensation not only as a
reward earned for his previous services but also as a sustenance to the
worker for the period which may be spent in search for another
employment.
12. At this juncture, it is relevant to consider Section 10(4A) of the
ID Act, which is as follows: -
"10(4A) Notwithstanding anything contained in
section 9C and in this section, in the case of a dispute
falling within the scope of section 2A, the individual
workman concerned may, within twelve months from the
date of communication to him of the order of discharge,
dismissal, retrenchment or termination or the date of
commencement of the Industrial Disputes (Delhi
Amendment) Act, 2003, whichever, is later, apply in the
prescribed manner, to the Labour Court or the Tribunal,
as the case may be, for adjudication of the dispute and
the Labour Court or Tribunal, as the case may be, shall
dispose of such application in the same manner as a
dispute referred under sub-section (1)."
13. A bare perusal of Section 10(4A) of the ID Act shows that it is
manifestly clear that the workman may apply to Labour Court or
Tribunal within 12 months from:
(i) Date of communication of order of discharge; or
(ii) Date of termination (if otherwise) specified; or
(iii) Date of commencement of Industrial Disputes (Delhi
Amendment) Act, 2003 whichever is later.
14. In the instant case, the petitioner was issued termination letter
dated 01.07.2009 (Annexure A-1). However, a careful perusal of the
said letter clearly shows that the services of the petitioner were to stand
relieved from the "date of completion of notice period", i.e. 31 st July,
2009. Therefore, in the instant circumstances limitation period will be
calculated from 31.07.2009, which is specified in the termination letter
dated 01.07.2009 and not from the date of communication of the
termination letter.
15. Thus, in view of the provisions of Industrial Disputes Act, 1947
the claim filed by the petitioner on 17.07.2010 is within the period of
limitation.
16. In view of the aforesaid discussion, the petition is allowed and
the impugned orders dated 06.05.2011 and 29.09.2012 passed by
learned Presiding Officer, Labour Court-V, Karkardooma Courts,
Delhi are set aside. The concerned Labour Court is directed to decide
the claim petition in accordance with law.
17. Both the parties are directed to appear before the concerned
Labour Court on 03.08.2015 at 10.00 a.m.
18. The trial court record be sent back forthwith.
(VED PRAKASH VAISH)
JUDGE
JULY 14th, 2015
hs
