Mahanagar Telephone Nigam Ltd. vs Shri Tribhuvan Yadav

Rajiv Sahai Endlaw, J.—This writ petition has been preferred with respect to the award dated 29th April, 2004 of the Industrial Tribunal. It is deemed expedient to set out the facts from the beginning. It is the case of the respondent workman that he was w.e.f. October, 1983 to November, 1985 working as a casual mazdoor with the North West Circle, Yamuna Nagar of the Telephone Department; that w.e.f. November, 1985 till 30th June, 1987 he worked as a casual mazdoor with the petitioner Mahanagar Telephone Nagar Limited (MTNL); that his services were terminated by the petitioner MTNL in accordance with its letter dated 29th June, 1987 with one months'' notice on the ground that his appointment was not as per the Rules. The respondent workman approached the Conciliation Officer at Delhi. A settlement dated 19th April, 1990 was arrived at before the Conciliation Officer and signed on behalf of the petitioner MTNL, the respondent workman and the Conciliation Officer [Assistant Labour Commissioner (Central)]. As per the said settlement the petitioner MTNL agreed to pay within 30 days the retrenchment compensation after ascertaining the facts, to the respondent workman. It was also agreed that the name of the respondent workman would be sent by the petitioner MTNL to the Surplusage Cell and at the time of recruitment he shall be preferred. It was also a term of the settlement that the respondent workman shall be provided the benefits as per law and the Conciliation Officer shall be informed regarding the compliance within 90 days.

The respondent workman vide a letter dated 20th April, 1990 to the Conciliation Officer applied for rescinding the aforesaid settlement terming it as one sided. It is also not the case of the petitioner MTNL that it, in accordance with the settlement, within 30 days thereof, paid any retrenchment compensation to the respondent workman. I find on the record of the Industrial Tribunal, summoned in this court, that the Conciliation Officer issued a letter dated 23rd November, 1990 to the petitioner MTNL regarding non-implementation of the said settlement. It further transpires from the said record that upon non-implementation of the settlement and rescission thereof by the respondent workman, again an industrial dispute was raised by the respondent workman regarding his termination as aforesaid. It was the case of the petitioner MTNL this time around before the Conciliation Officer that it had offered the retrenchment compensation of Rs. 585/- vide cheque dated 1st January, 1991 to the respondent workman but which had not been accepted. In the circumstances the Conciliation Officer finding no possibility of settlement, the following reference was made to the Industrial Tribunal:

Whether the Divisional Engineer, PCM, New Delhi was justified in terminating the services of Shri Tribhuvan Yadav S/o Shri Sarabjeet Yadav w.e.f. 01.07.1987? If not what relief the workman concerned is entitled to?

The respondent workman filed a claim before the Tribunal pleading inter alia that he had worked for more than 240 days and neither any notice of termination nor compensation had been given to him. The petitioner MTNL filed a written statement before the Industrial Tribunal pleading the settlement dated 19th April, 1990 and further pleading that the industrial dispute was not maintainable for the reason thereof. It was further pleaded that the services of the respondent workman were terminated in terms of the policy directions of the Government to dispense with the casual labour who were engaged after the ban on employment of casual labour imposed through Circular dated 30th March, 1985. It was also pleaded that the respondent workman had been given one month''s notice and been also furnished the reasons for his termination but he never came to collect the compensation and chose to raise the industrial dispute. It was also pleaded that the engagement claimed by the respondent workman with the Department of Telecom, Yamuna Nagar was not relevant, the petitioner being a separate legal entity. It was also pleaded that the retrenchment compensation in terms of the settlement agreement dated 19th April, 1990 could not be paid owing to the respondent workman rescinding and repudiating the contract within five days thereof.

The Industrial Tribunal has in the award impugned in this petition at one place held that the respondent workman has not worked for 240 days in one calendar year and at another place held that as per Section 18 of the ID Act the settlement was binding on the parties and the respondent workman was not entitled to withdraw from the same. It has also been held that the respondent workman had been given a cheque by way of compensation of retrenchment and which cheque was on record; that even though the cheque was not sent within the agreed time of 30 days and sent on 1st January, 1991 but the respondent workman having already retracted from and repudiated the settlement, the said delay in sending the cheque was of no avail and the respondent workman remained bound by the settlement. After holding so, the Tribunal has held that the petitioner was not justified in terminating the services of the respondent workman w.e.f. 1st July, 1987; but since the workman had reached a settlement before the Conciliation Officer and which settlement is binding on him, according to the terms of the settlement he should be given re-employment as and when a vacancy arises and if it is not done so by the petitioner, the workman will be entitled to reinstatement w.e.f. 1st July, 1987 with 50% back wages.

Aggrieved from the said award, the petitioner has preferred this petition. On the application of the petitioner for interim relief, on 22nd November, 2004 it was directed that the petitioner shall comply with the provision of Section 17B and deposit 50% of the last paid wages in the court. Again on 10th February, 2005 the petitioner was granted time to deposit 50% of the last paid wages u/s 17B of the ID Act. A sum of Rs. 62,402/- has been deposited by the petitioner in this Court pursuant to the said order. The respondent workman has filed a counter affidavit (and to which a rejoinder has been filed by the petitioner) as well as CM. No. 7650/2008 u/s 17B of the ID Act.

The counsels have been heard.

As far as the application filed by the respondent workman u/s 17B of the ID Act is concerned, this court, prior to the said application, in exercise of powers u/s 17B of the ID Act, directed the petitioner to deposit 50% of the last paid wages. If the respondent workman was aggrieved from the same, the respondent workman ought to have challenged the said order and the fresh application u/s 17B of the ID Act is not maintainable and is dismissed and does not come in the way of hearing and disposal of this petition.

The aforesaid would show that the award cannot be sustained at all. The award though gives a finding that the termination of services of the respondent is illegal but does not contain any basis therefor. It is not in dispute that the respondent workman was a casual worker and the award records that the respondent had not completed 240 days of employment in one calendar year. It is thus not understandable as to on what basis the finding of the termination of the services of the respondent as illegal and contrary to the observation elsewhere in the award, has been reached. Again, the award on the one hand holds the respondent bound by the settlement and on the other hand gives contrary direction for reinstatement of the respondent. The counsel for the petitioner has urged that the appointment of the respondent as casual worker contrary to the rules, being illegal, as per the judgment of the Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, the services of the respondent cannot be regularized.

The counsel for the respondent workman has been unable to show any basis in the award for the finding of the termination of services of the respondent being illegal. He has contended that the finding of the respondent being bound by the settlement is contrary to the settlement. It is urged that as per the settlement the retrenchment compensation was payable within 30 days and the petitioner having not paid the said compensation cannot rely on the settlement. The counsel is however unable to cite any law to the said effect. The Industrial Tribunal has also held the settlement to be binding on the respondent and which finding of the Labour Court has not been challenged by the respondent workman.

A perusal of Section 18 of the ID Act also does not support the said argument of the counsel for the respondent. Further, u/s 19 the settlement is valid for six months. However, the petitioner did not pay the amount as per the settlement even within six months of 19th April, 1990. It would thus prima facie appear that the settlement dated 19th April, 1990 came to an end. The counsel for the petitioner MTNL relies on Section 33C(2) and Section 29 of the Act to contend that the settlement was enforceable and the remedy of the respondent was only to enforce the settlement and not by reigniting the industrial dispute which stood settled. However, all these questions also would have to be adjudicated and apparently have not been adjudicated by the Industrial Tribunal. The award thus necessarily has to be set aside and quashed and the matter remanded to the Industrial Tribunal for fresh adjudication.

However, the same is not found as an appropriate relief in the present case. The removal of the respondent workman from service was 23 years ago. The respondent workman had worked with the petitioner MTNL for a short time only. The employment of the respondent workman as a casual worker with the Department of Telecom at Yamuna Nagar cannot be equated as an employment with the petitioner MTNL. Considering all the said aspects and further considering that if the matter is now remanded, the final adjudication thereof will take further time, it is deemed expedient to enhance the retrenchment compensation under the settlement dated 19th April, 1990 from Rs. 585/- to Rs. 50,000/-, with a hope that the parties will not take the matter further and put a quietus thereto.

Accordingly, this writ petition is disposed of by modifying the award dated 29th April, 2004 impugned herein to award of compensation of Rs. 50,000/- to the respondent workman in full and final settlement of all his claims whatsoever including of back wages or of reinstatement or otherwise against the petitioner. The said amount of Rs. 50,000/- be paid to the respondent workman out of the amount as aforesaid deposited by the petitioner in this court. The Registry is directed to forthwith, out of the amount deposited by petitioner in this Court, release a sum of Rs. 50,000/- (Rupees Fifty Thousand) to the petitioner. The balance amount deposited by the petitioner be refunded to the petitioner. The parties are left to bear their own costs.