Sushil Kumar vs University of Delhi

Dr. S. Muralidhar, J.—This appeal is directed against the impugned judgment dated 17th October, 2006 passed by the learned Single Judge of this.Court allowing the W.P. (Civil) No. 3007 of 2003 filed by the respondent University of Delhi challenging an Award dated 19th April, 2002 passed by the Labour Court directing the reinstatement of the appellant with full back-wages and continuity in service.

The appellant was employed with the Delhi University with effect from 15th January, 1996. He was a muster roll employee and was being paid wages on a monthly basis. His services were terminated on 16th April, 1999 without any prior notice. The dispute raised by the appellant was referred to the Labour Court. The stand taken by the University was that the appellant was engaged only during examination days and was not a regular employee. According to the University he was engaged as a daily wager from 3rd March, 1997 to 12th August, 1997 for a specific purpose and again on ad hoc basis from 16th June, 1998 till his termination of the services.

The Tribunal in its Award dated 19th April, 2002 noted that the,University has not produced the attendance register of the workman. It had not filed any document showing that the workman was appointed only for a specific purpose for a limited period. In fact the certificates produced by the University showed that that the workman had been employed from 1st July, 1996 to 15th June, 1998. Further, the workman was not cross-examined on this aspect. The witness for the University MW-1 stated in his cross-examination that no appointment letter had been issued by any department of the University to the appellant. On the basis of the above evidence, the Tribunal concluded that the University had failed to prove that the services of the appellant were engaged only for a specific period.

On the second issue the Tribunal noted that MW-1 had admitted in his cross-examination that neither notice nor notice pay or retrenchment compensation had been paid to the workman. Further there was no cross- examination of the workman in regard to the statement in his affidavit that neither any memo nor any charge-sheet was serves upon him and no domestic enquiry was held. In the circumstances, the Tribunal concluded that the University had violated the provisions of Section 25-F of the Act. MW 1 further admitted that no seniority list was displayed on or before 16th April, 1999 and that unskilled workers were required by the University even as of the date of his deposition. Accordingly it was held that both Sections 25-G and 25-H of the Act had been violated. In the circumstances the Labour Court directed, the reinstatement of the appellant with full back-wages.

Against the Award of the Labour Court directing the reinstatement with full back-wages, the respondent has filed WP(C) No. 3007 of 2003 which came to be allowed by the impugned judgment of the learned Single Judge. It was held that the Tribunal had erred in ignoring the payment vouchers produced by the University which reflected that the appellant had worked only for a few days in April, 1999 and May, 1999. Thereafter the learned Single Judge observed as under:

Exhibit MW-1/2 is the payment voucher in respect of work done by the respondent in the. month of April, 1999 which shows that the respondent had worked for 12 days in the month of April and received a sum of Rs. 894 @ Rs. 74.50 per day. Similarly Ex. MW-1/3 shows that Respondent had worked for 13 days in May, 1999 and received a sum of Rs. 968.50 for these 13 days. Muster roll Ex. MW-1/1 also shows that respondent worked for 12 days only in the month of April, 1999. MW-1 in his testimony stated that respondent was engaged on contractual basis from 3.3.1997 to 12.8.1997 and then from 16.6.1998 for two months and then he worked in April and May, 1999 on daily wages. There is no cross- examination on this testimony and still the Tribunal ignored the testimony of MW-1 altogether.

It is settled law that an award which is based on no evidence or is contrary to evidence on record is a perverse award and can be set aside in exercise of power of judicial review. It is, obvious from record that Tribunal misdirected itself and did not take into account the documents produced by the petitioner and the evidence of the petitioner and passed order on conjecture and surmises. It wrongly put onus on petitioner as already discussed.

On a perusal of the evidence of MW-1, it is seen that in his cross- examination he by and large substantiated what was stated by the appellant in his affidavit by way of evidence. In his affidavit dated 23rd January, 1992 the appellant referred to the following documents which were also exhibited by him as under:

That the copy of the legal demand notice dated 7.6.1999 served on the Management by the Union marked as D-1 may be treated WW1/1, the Postal Receipt vide No. 4042 marked as D-2 may be treated as WW1/2, the copy of Experience Certificate dated 3.2.1997 issued to the deponent by the management marked as D-3 may be treated as WW1/3, the copy of Experience Certificate dated 20.8.1997 issued to the deponent by the management marked as D-3 may be treated as WW1/3, the copy of the Experience Certificate dated 1.7.1998 issued to the deponent by the Management marked as D-5 may be treated as WW1/5, the copy of salary bill of the deponent for the month of June, 1998 marked as D-6 may be treated as WW1/6, the copy of attendance register (7 sheets) marked as D-7 may be treated as WW1/7, the copy of experience certificate dated 26.12.1998 issued to the deponent by the Management marked as D-8 may be treated as WW1/8, the copy of the letter dated 29th July, 1999 sent by the management to the Union in reply to the demand notice served on the Management marked as D-9 may be treated as WW1/9, the copy of the Statement of Claim filed by the deponent before the Conciliation Officer marked as D-10 may be treated as WW1/10, the copy of the Written Statement filed by the management before the Conciliation Officer marked as D-11 may be treated as WW1/11 and that the copy of Rejoinder filed on behalf of the deponent before the Conciliation Officer marked as D-12 may be treated as VVW1/12.

As against the above evidence, the management witness in his cross- examination stated as under:

I know facts of present case, Ex. WW1/3 was issued by Ratan Tata Library, Delhi University. Exs. WW1/4, WW1/5, WW1/6, WW1/7, WW1/8, and WW1/9 were issued by Campus Law Center again said by the management. It is wrong to suggest that workman had been working continuously with the management from 1st December, 1997 to May, 1999. It is correct that attendance of workman used to be marked in the attendance register. It is correct that on the basis of attendance register, the workman is used to be paid wages. It is correct that attendance register is the authentic record in respect of the attendance of the workman in the university. I have not brought attendance register. It is wrong to suggest that I have not brought the attendance register because that would have proved that workman had been doing his duty continuously with the management during the above referred period. Vol. I can produce the record if time is given to me. I say that register today at 10 A.M. on an average workman attended his duties about 22 days to 26 days in-a month depending upon the number of Sunday and Saturdays and other holidays for the above referred period. It is correct that I have I not included Saturdays, Sundays and holidays in the above working days i.e. 22 to 26 days. 22-26 days are the actual working days. It is correct that workman being paid wages at the rate of minimum wages fixed by the appropriate Government.

No appointment letter was issued by any Department of the Management to the workman. Letter was issued to the effect that services of workman were being engaged for the period of six months and again for a period of two months in the library. It is incorrect to suggest that no such letters were issued. It is wrong to suggest that unskilled persons which were engaged by the university in the year 1996-2000 were still working with the management. It is wrong to suggest that Shri Mahander Singh was a junior of workman. I do not recollect the date, month and year of up to which he worked with the management. It is wrong to suggest that I am concealing facts in this regard. Neither notice nor notice pay or retrenchment compensation was paid to the workman. No seniority list was displayed on or before 16.4.1999. It is correct that unskilled workers are required in the university even on today. Voltd. Depending upon the season. I cannot say if unskilled workers are required in Delhi University permanently. I do not have any document to show that workman had been in gainful employment on or after 15.5.1999. It is wrong to suggest that Ex.MW1/2 and MW1/3 do not bear signatures of workman. It is further wrong to suggest that Ex. MW1/1 does not bear signatures of workman. It is wrong to suggest that all these documents are fabricated documents. I have stated in my affidavit that workman is in gainful employment on the basis that he is maintaining his children and mother even after 15.5.1999. I never visited the house of workman. I cannot tell the exact number of the children. It is wrong to suggest that my affidavit is false.

A perusal of the above mentioned record shows that the learned Single Judge has selectively quoted some portions thereof to come to the conclusion that the order of the Tribunal was perverse. We are unable to the agree with this view and have no hesitation in concurring with the Tribunal that the University has failed to substantiate its claim that the appellant had been engaged only for a brief period in 1999.

Further, the evidence of the MW-1 is sufficient to conclude that the provisions u/s 25-F of the Act were violated. The learned Single Judge has also not adverted to the finding of the Tribunal about the violation of Section 25-G and 25-H of the Act. The learned Single Judge appears to have drawn an adverse interference against the appellant only because the University produced two payment vouchers to demonstrate that the appellant was engaged for the months of April and May, 1999. This cannot wipe out the documents produced by the appellant and the statements made by the management witness in the cross-examination as extracted hereinabove.

For all the above reasons, we are satisfied that the impugned judgment of the learned Single Judge is unsustainable both in law as well as on facts. As regards the relief that should be granted to the appellant, we find that he has been out of service since 15th May, 1999 and the total claim for back-wages made by him on the basis of the last drawn wages works out to Rs. 3.5 lakhs. However, considering the fact that the reinstatement need not invariably be the relief to be granted and that in lieu thereof compensation can be awarded, we consider it in the interests of justice to direct that in lieu of reinstatement, back-wages and all other claims by the appellant against the University of Delhi, he should be paid by the University a sum of Rs. 1.5 lakhs. It is ordered accordingly. This payment should be paid within a period of four weeks from today.

The appeal is, accordingly disposed of with the above directions.