M/S Municipal Corporation Of ... vs Krishan Kumar
2015 Latest Caselaw 8799 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                     Judgment delivered on: November 27, 2015

%       W.P.(C) No. 5513/2004


       M/S MUNICIPAL CORPORATION OF DELHI             ..... Petitioner
                     Through: Ms. Saroj Bidawat, Advocate.

                             versus

        KRISHAN KUMAR                                           .....Respondent
                    Through:               Mr. Rajiv Aggarwal and Mr. Sachin
                                           Kumar, Advocates.


        CORAM:
        HON'BLE MR. JUSTICE I.S.MEHTA

                                      JUDGMENT

I. S. MEHTA, J.

1. The present petitioner, i.e., Municipal Corporation of Delhi

(hereinafter referred to as the „petitioner-management‟) has preferred the

present Writ Petition under Articles 226 and 227 of the Constitution of

India assailing the validity of the impugned Award dated 07.07.2003

passed by the Presiding Officer, Labour Court No. IX, Karkardooma,

Delhi (hereinafter referred to as the „learned Labour Court/Industrial

Adjudicator‟) in I.D. No. 187/95.

2. The brief facts as stated are that the respondent-workman, i.e., Shri

Krishan Kumar joined the employment of petitioner-management, i.e.,

Municipal Corporation of Delhi as Mortarman w.e.f. 15.03.1989 as a

daily muster roll worker and was allegedly being paid wages less than

those fixed by the Delhi Administration under the Minimum Wages Act

for skilled category of workers. The respondent-workman, i.e., Shri

Krishan Kumar continued in the employment of the petitioner-

management till 15.05.1993, on which date, without assigning any

reason, his services were terminated. The action taken by the petitioner-

management is violative of Sections 25-F, G, H and N of the Industrial

Disputes Act, 1947, read with Rules 76, 77, and 78 of the Industrial

Disputes (Central) Rules, 1957 and also violative of Articles 14, 16 and

39(d) of the Constitution of India.

The respondent-workman raised an industrial dispute and the same

was referred by the Secretary (Labour), Government of NCT of Delhi,

vide reference No. F-24(1057)95-Lab./20061-66 dated 11.07.1995 to the

learned Industrial Adjudicator for adjudication on the following terms of

reference:

"Whether Shri Krishan Kumar has abandoned the job or his services have been terminated illegally and/or unjustifiably by the management and if so, to what relief is he entitled and what directions are necessary in this respect?"

The respondent-workman filed his statement of claim before the

Labour Court, the petitioner-management filed its written statement and

thereafter, rejoinder on behalf of the respondent-workman was filed and

after framing the issues, both the parties led their respective evidence on

their behalf and thereafter, the Labour Court passed the impugned Award

dated 07.07.2003.

Aggrieved by the aforesaid Award dated 07.07.2003, the petitioner,

i.e., Municipal Corporation of Delhi, has preferred the present Writ

Petition.

3. The learned counsel causing appearance on behalf of the petitioner-

management, i.e., Municipal Corporation of Delhi has contended that the

respondent-workman was never given employment on regular basis in a

specific category of Mortarman, but was engaged as a daily rated beldar

who is not entitled to any benefits of regular employee. Hence, the

respondent-workman is not entitled for any relief of pay scale and

therefore, the present Writ Petition is not maintainable. Reliance is placed

upon the judgment rendered in the case of Himanshu Kumar Vidyarthi

& Ors. Vs. State of Bihar & Ors., JT 1997 (4) S.C. 560.

The learned counsel for the petitioner-management further argued

that the respondent-workman has not worked for 240 days in the relevant

calendar year, and the learned Industrial Adjudicator wrongly calculated

the number of working days in the year 1991. He further argued that it

was upon the respondent-workman to show that he has worked for more

than 240 days in the relevant year and relied upon the judgments, i.e.,

Municipal Corporation Faridabad vs. Durga Prasad (2008) 5 SCC 171

and State of Madhya Pradesh vs. Arjun Lal Rajak, 2006 2 SCC 711 and

also submitted that it was the respondent-workman who has voluntarily

abandoned the services of the petitioner-management.

The learned counsel for the petitioner-management further

submitted that the respondent-workman was never terminated from

service but it was he himself who stopped coming for service, i.e., the

respondent-workman abandoned the services of the petitioner-

management.

On the other hand, the learned counsel appearing on behalf of the

respondent-workman has submitted that the respondent-workman has an

unblemished and uninterrupted record of service to his credit and the job

against which the respondent-workman was working is of a regular and

permanent nature.

The learned counsel for the respondent-workman has further

argued that the termination of the respondent-workman was illegal and no

notice or notice pay was given thereby violating the provisions of Section

25-F and G of the Industrial Disputes Act, 1947.

The learned counsel further submitted that the respondent-

workman has acquired the status of workman prior to his date of

termination, i.e., 15.05.1993 and is unemployed since then. Therefore, the

respondent is entitled to be reinstated with continuity in service along

with full back-wages.

4. In the instant case, the engagement of the respondent-workman as a

daily rated worker with the petitioner-management has not been disputed

by the petitioner-management, i.e., Municipal Corporation of Delhi in the

written statement filed by them which is reproduced as under:

"(1)...But it is a fact that the workman was engaged as daily rated beldar to perform the work of daily wage beldar and he is not entitled to any benefits as claimed until and unless he is regularised in the particular grade, hence he is not entitled for any relief of pay-scale and usual allowances as well as other benefits..."

5. The plea that the respondent-workman has not completed 240 days

in the calendar year 1992 loses its significance on account of deemed

admission as the petitioner-management has not specifically denied in

their written statement that the respondent-workman has not completed

240 days of continuous service in the relevant year/calendar year. The

document, i.e., Ex MW 1/1 is an incomplete record for want of original

document i.e., original complete muster roll and further, the same is

coming on record without any explanation as to what prevented the

petitioner-management from filing the original document along with MW

1/1 on the date of filing of written statement. Once, the respondent-

workman has acquired the status of 'workman' within the meaning of

Section 2(s) of the Industrial Disputes Act, 1947, and completes 240 days

of continuous service, his termination from the service/employment could

be valid only after the due procedure as laid down in Section 25-F of the

aforesaid Act is followed. Section 25-F of the Industrial Disputes Act,

1947 is reproduced hereinunder:

"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 3 or such authority as may be specified by the appropriate Government by notification in the Official Gazette."

6. The plea of the petitioner-management that the respondent-

workman, being a daily rated worker, is not entitled to any benefit of

Industrial Disputes Act, 1947 by placing reliance on the judgment, i.e.,

Himanshu Kumar Vidyarthi & Ors. Vs. State of Bihar & Ors., JT 1997

(4) S.C. 560, loses its significance as in the instant case, the respondent-

workman, who is a daily rated worker, worked for 240 days in the

relevant year under the petitioner-management and has acquired the

status of a 'workman' under Section 2(s) of the Industrial Disputes Act,

1947 thereby attracting the mandatory provisions of Section 25-F and

Section 25-G of the Industrial Disputes Act, 1947. Reliance in this regard

is placed on the judgment rendered by the Apex Court in the case of Asst.

Engineer, Rajasthan Dev. Corporation and Anr. vs. Gitam Singh,

(2013) 2 SCC (LS) 369, wherein the Hon'ble Supreme Court made the

following observations:

"10. In L. Robert D'Souza (1982) 1 SCC 645, this Court in paragraph 27 (pg. 664) held as under:

27. ... Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25-F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pre-conditions to valid retrenchment, the order of termination would be illegal and invalid.

11. What has been held by this Court in L. Robert D'Souza, (1982) 1 SCC 645 is that Section 25-F of the Industrial Disputes Act is applicable to a daily-rated worker. We do not think that there is any dispute on this proposition." (Emphasis Supplied)

However, there is no documentary evidence to suggest that the

mandatory requirements under Section 25-F of the said Act, i.e., notice

and notice pay was ever issued to the respondent-workman after the

termination of his services on 15.05.1993 or that the petitioner-

management adopted the due procedure in accordance with law as laid

down by the Industrial Disputes Act, 1947 for termination of the

respondent-workman's services. Therefore, the termination of the

respondent-workman was not done in accordance with law and therefore,

the termination is illegal.

7. The petitioner-management has further taken the plea that the

respondent-workman was not terminated from his employment by the

petitioner-management. Rather, it was the respondent-workman himself,

who voluntarily abandoned the services of the petitioner-management.

There is no documentary record to show that the respondent-workman

has himself abandoned the services of the petitioner-management. The

plea of abandonment taken by the petitioner-management loses its

significance in the absence of any documentary evidence to this effect.

The Division Bench of the Delhi High Court in the case of B.G. Saraswat

vs. Engineers India Ltd., 61 (1996) DLT 588, has made the observation

that unless there is material available to show the intention on the part of

the workman to totally give up duties, it will not be possible to arrive at

the conclusion that the respondent-workman would have abandoned the

services of the petitioner-management. Since, it is an admitted fact that

the respondent-workman was under the employment of petitioner-

management, it is for the petitioner-management to show the manner in

which the workman was disengaged from the employment. Therefore, the

plea of abandonment taken by the petitioner-management is without

merit.

8. The Hon'ble Supreme Court in the case of Jasmer Singh vs. State

of Haryana, (2015) 4 SCC 458, has made the following observations:

"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."

9. As discussed above, this Court while exercising its power of

judicial review under Article 226 of the Constitution of India finds no

illegality and perversity in the impugned Award dated 07.07.2003.

Consequently, the present writ-petition is dismissed. The Lower

Court record be sent back with a copy of this Judgment. No order as to

costs.

I.S.MEHTA, J

NOVEMBER 27, 2015 j