The Management of Flood Control Department vs Sh. S.K. Manocha and Another

Valmiki J Mehta, J.—This matter is shown on the Board since 11.AM. It is now 12.15 PM. However, no one has appeared on behalf of the petitioner. The order sheets of this case show that after admission of the petition on 15.9.1998, none has appeared for the petitioner thereafter on various dates. The dates on which one appeared on behalf of the petitioner are 16.11.2004, 20.5.2005, 12.09.2005, 9.11.2005 and 28.3.2006. Even the rejoinder affidavit has not been filed although opportunity was granted way back on 12.9.2005. I have therefore perused the records and am proceeding to dispose of the petition.

By means of the present petition under Articles 226 and 227 of the Constitution of India, the petitioner, namely the Management of Flood Control Department of the Government of National Capital Territory of Delhi, challenges the Award dated 15.4.1996 passed by the Presiding Officer, Labour Court, and by which award, the petitioner was directed to reinstate the respondent No. 2/workman with full back wages as his retrenchment was found to be in violation of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as the ''Act'').

The facts of the case are that the respondent No. 2 was employed as a daily wager/on muster roll since 1980 by the petitioner. The petitioner worked from the year 1980 to 1987. It is an admitted case that the respondent No. 2 worked for 261 days in 1982, 241 days in 1983, 184 days in 1984, 274 days in 1985, 290 days in 1986 and 122 days in 1987. It is alleged by the petitioner that the respondent No. 2 thereafter in 1987 left the services on his own whereas the case of the respondent No. 2 is that he has been illegally retrenched without complying with the requirements of Section 25F of the Act. A reference order was made on 8.3.1988 for adjudication by the Labour Court as to whether the termination of the services of the respondent No. 2 is illegally/unjustified and to what relief the respondent No. 2 is entitled in case the termination of services is found to be illegal/ unjustified. This reference was answered in favour of the respondent No. 2 workman by the impugned award.

The impugned award arrives at the following conclusions:

(i) The respondent No. 2 workman has worked continuously for more than 240 days.

(ii) The respondent No. 2 workman did not leave on his own but his services were illegally terminated.

(iii) The requirements of Section 25F of notice period wages and giving of 15 days pay for each year of working has not been complied with.

By the impugned award therefore the petitioner was directed to reinstate the respondent No. 2 along with full back wages. Some of the relevant paragraphs of the impugned award read as under:

Shri Ashok Chopra MW1 in his statement admits that Partap Singh was working on daily wages as muster roll employee w.e.f. 1-11-80 and he worked 49 days in the year 1980, he worked 50 days in 1981, 261 days in 1982, 241 days in 1983, 184 days in 1984, 274 days in 1985, 290 days in 1986 and 122 days in 1987 and he left the services after 20-7-87 at his own and the management wrote a letter to the workman the copy of which is WW1/5.

Partap Singh in his affidavit has stated that his services were terminated from 1-7-87 without any notice or compensation. There is no reason to disbelieve the statement of his workman who has been working admittedly on daily wages since 1-11-80 as per the admission of the management. The plea of the management that the workman himself left the service on 30-6-97 is even otherwise improbable.

The workman has deposed that he sent a demand notice to the management on dated 30-9-87 the copy of which is WW1/1 postal receipt is WW1/2. Before sending this demand notice the workman has written to the Lt. Governor Delhi a letter the copy of which is WW1/7 and postal receipt is WW1/8. In letter dated 17-9-87 and 30-9-87 the workman has alleged that in Delhi 1987 his services have been terminated by the management. The statement of the workman is supported by these notices sent to the management and other authorities sometimes after the termination of the service of the workmen.

It is an admitted fact that on 1-7-87 the workman has rendered services of 122 days in the year 1987 and he has admittedly rendered the services of 290 days in the year 1986. So from these facts it is clearly established that the management was required to comply the conditions precedent to valid retrenchment provided in Section 25F of the Industrial Disputes Act. Ashok Chopra MW1 in his statement has stated that no retrenchment benefits have been given to the workman. As the workman has been in continuous service for a period of not less than one year before the termination of his service and as the management has failed to comply with the provisions of Section 25F of the regarding valid retrenchment, the retrenchment is invalid.

In the light of above discussion it is held that it is proved that the termination of services of the workman Partap Singh was illegal and unjustified and the workman is entitled to the relief of full back wages and the management is directed to give to the workman full back wages and reinstate him in his service.

Before this Court is persuaded to exercise its power under Articles 226 and 227 of the Constitution of India it has to be shown that there is ex facie illegality or perversity in the impugned award. A reading of the aforesaid paragraphs of the impugned award show that there is neither any illegality or perversity. In fact, the award is just and proper, except to a minor extent of granting full back wages and which is being considered subsequently hereinafter. I may note that during the pendency of the present case, payment in terms of Section 17B has already been made to the respondent No. 2/ workman.

It is therefore clear that the termination of the respondent No. 2 workman was not justified and clearly fell foul of Section 25F and the direction in the impugned order for his reinstatement cannot be faulted with. Respondent No. 2 should therefore be reinstated at the same status of a casual labourer which he was at the time of his retrenchment.

The only issue is whether the respondent No. 2/workman should be granted full back wages or not. On the one hand, it is clear that the respondent No. 2 has worked for more than 240 days right from 1982 to 1987 (except in 1984 where he worked for 184 days), on the other hand, it is clear that the petitioner had appointed another person in place of respondent No. 2 who would have been paid for undertaking the job of cleaning of drains. In the facts and circumstances of the case, therefore, I deem it fit that instead of granting 100% back wages, the respondent No. 2 should only be allowed 75% back wages instead of full back wages as granted by the impugned Award. It is also possible that respondent No. 2- a daily wager, obviously, would have preferred to work elsewhere and not sit at home. The respondent No. 2 is not in that strata of society whether he could have preferred to sit at home being doing nothing. Accordingly, it is deem appropriate that the back wages will be only 75% and not the full back wages as granted by the impugned award.

In view of the above, the present petition is disposed of by sustaining the award with respect to reinstatement of the respondent No. 2/workman as also grant of back wages, however, the back wages shall not be full back wages but only 75% of the back wages. The petitioner is directed to reinstate the respondent at the same status he was of a casual labourer when he was retrenched.

The petition is therefore disposed of as above, leaving the parties to bear their own costs.