North Delhi Municipal ... vs Krishan Kumar
2018 Latest Caselaw 6577 Del

                                                      SUNITA BISHT

                                                      15.11.2018 11:14

$~14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+
             L.P.A 497/2017 & CM 26271/2017 (stay)

NORTH DELHI MUNICIPAL CORPORATION                       ..... Appellant
                        Through:     None
                        versus
KRISHAN KUMAR                                         .... Respondent
                        Through:     None

CORAM: JUSTICE S. MURALIDHAR
       JUSTICE SANJEEV NARULA

                        ORDER

% 15.11.2018

1. It has been brought to the notice of the Court that inadvertently a draft order prepared in LPA 497/2017 (North Delhi Municipal Corporation v. Krishan Kumar) passed on 31st October, 2018 was uploaded on the website which was to be corrected.

2. The corrected and signed order in LPA 497/2017 be immediately placed on the website, and the order earlier uploaded be removed forthwith.

                                               S. MURALIDHAR, J


                                            SANJEEV NARULA, J
November 15, 2018/sapna
 $~14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+
               L.P.A 497/2017 & CM 26271/2017 (stay)

NORTH DELHI MUNICIPAL CORPORATION                         ..... Appellant
                          Through:     Ms. Saroj Bidawat, Advocate.
                          versus

KRISHAN KUMAR                                            .... Respondent
                          Through:     Ms. Megha De, Advocate.

CORAM: JUSTICE S. MURALIDHAR
       JUSTICE SANJEEV NARULA

                          ORDER
     %                    31.10.2018

CM No. 26272/2017 (application for condonation of delay)

1. Before examining the merits of the case, it is to be noted that there is an inordinate delay of 550 days on the part of the Appellant in filing the present appeal.

2. The aforesaid delay is sought to be explained as under:-

"2. That after passing of the judgement, counsel sent the copy of the judgment after receiving it from the registry along with the opinion for challenging the same.

3. That the said judgment with opinion got misplaced. The reason may be that the said writ was filed when MCD was not trifurcated. After trifurcation files were distributed zone wise and because of some

misunderstanding counsel letter with judgment may have been forwarded to wrong zone.

4. That in the meanwhile the workman filed an application u/s 33-C for the recovery of the back wages from 01.01.2012 to 31.01.2016.

5. That the management came to know about the judgment dated 27.11.2015, when they received the recovery case file along with the coy of court orders on 16.02.2017 from their counsel before the Labour Commissioner.

6. That the management immediately forwarded the file to higher authorities for taking their advise for further action in the said matter.

7. That in May 2017, the officers of the Corporation after taking approval from higher authorities contacted the counsel and directed to file LPA challenging the judgement dated 27.11.2015.

8. That the accompanying LPA could not be filed during the stipulated time because of the reason that the copy of the judgment dated 27.11.2015 did not reach to the concerned division, it may have been marked to some other division/officers inadvertently, not related to the instant matter, due to which, the matter could not be taken up for challenge before the Hon'ble Court in due course of time."

3. The aforesaid grounds and reasons seeking condonation of delay do not inspire any confidence. The explanation is frivolous, vague and inexact. There is also no documentary evidence annexed with the application in support of the alleged reasons. The application also does not give any time line or the details/dates of the movement of the file at the end of the Appellant. The attempt to explain the delay stating that the Management came to know about the impugned judgment on 16th February 2017 when they received the recovery case

file along with the copy of the court order from the respondent's counsel, is facetious to say the least.

4. There is no explanation whatsoever as to what transpired prior to 16th February, 2017. The Appellant-Management cannot justify the delay by taking shelter of the plea that the opinion on the judgment sought from the counsel, when received, was misplaced. Further, the plea of trifurcation of the Municipal Corporation of Delhi can also not justify the gross delay. The plea of misunderstanding between the Appellant-Management and its counsel, cited as one of the reasons for delay, is also completely bereft of merits.

5. The Supreme Court in the case of Postmaster General v. Living Media India Limited (2012) 3 SCC 563 has held as under:

"In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

6. The Appellant-management being a Corporation is expected to act

diligently. The entire explanation for seeking condonation of delay shows a casual and lackadaisical approach that cannot be countenanced. Therefore, the explanation of departmental delay on part of the Appellant deserves to be discredited. The application seeking condonation of delay does not warrant any leniency. Accordingly, the application is dismissed.

L.P.A. 497 of 2017 & CM 26271/2017 (stay)

7. Nevertheless the appeal has also been examined on merits.

8. The Appellant-North Delhi Municipal Corporation has preferred the present appeal assailing the judgment dated 27th November, 2015 passed by the learned Single Judge in W.P.(C) 5513/2004 upholding the award passed by the Labour Court.

9. Briefly stated the facts of the case are that the respondent-workman i.e. Sh. Krishan Kumar joined the employment of Municipal Corporation of Delhi (now North Delhi Municipal Corporation) as Mortarman on 15th March, 1989 as a daily muster roll worker. He continued in the employment of the Appellant till 15th May, 1993 on which date, without assigning any reasons his services were terminated.

10. The case of the Appellant, however, is that the services of the respondent-workman were never terminated by the Management and that he on his own stopped reporting to duty on 14th May 1993.

11. The respondent-workman raised an industrial dispute. The Labour Court, IX, Karkardooma, Delhi (hereinafter referred to as 'Labour Court'), passed an Award dated 7th July, 2003 ordering reinstatement of the respondent workman with full back wages.

12. The Appellant then challenged the Award in this Court by way of Writ Petition bearing No. W.P (C) 5513/2004. In the impugned judgment dismissing the said writ petition, the learned Single Judge concurred with the findings of the Labour Court that the Appellant had not specifically denied that the workman has completed 240 days of continuous service in the relevant year. The learned Single Judge has also noted and agreed with the Labour Court that the muster roll produced by the Appellant was an incomplete document. Both, the Labour Court as well as Learned Single Judge have thus concluded that respondent had completed 240 days of continuous service during the relevant year and he acquired the status of 'workman' within the meaning of the Section 2 (s) of the Industrial Disputes Act, 1947.

13. These being concurrent findings of fact, which have not been shown to be perverse, this Court finds no reason to interfere. Indeed, it was for the Appellant to produce the complete record and in absence thereof, an adverse inference was rightly drawn against the Appellant. Once the Labour Court arrived at a finding of fact that the status of the Respondent was that of a 'workman', the necessary sequitur that the Respondent was entitled to the protection as provided under the Act, had to follow. Admittedly, no notice for termination was given by the

Appellant to the respondent as is the mandatory requirement under Section 25-F of the Act. There is no documentary evidence shown to us which can even remotely suggest that the respondent abandoned the services of the Appellant. Therefore, the plea of abandonment is ex- facie without any merit. The learned Single Judge has rightly concluded that the termination of the respondent's services is contrary to the provisions of the Industrial Disputes Act, 1947.

14. For the above reasons, the appeal is dismissed both on the grounds of delay and merits. The application is also dismissed.

SANJEEV NARULA, J

S. MURALIDHAR, J October 31, 2018 sapna