IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on : 4th September, 2017 Date of decision : 7th May, 2019 + [CASE NUMBER] & [CASE NUMBER] SUNIL KUMAR Petitioner Through: Mr. [ENTITY], Advocate versus PRESIDING OFFICER LABOUR COURT AND ANOTHER . Respondent Through: Ms. [ENTITY], Ms. [ENTITY], Advocates for R2. None for R1. CORAM: HON'BLE MS. JUSTICE [ENTITY] JUDGMENT
[ENTITY], J.
1. The petitioner / workman Sh. [ENTITY] vide the present Civil Writ Petition bearing No. [CASE NUMBER] has assailed the impugned award dated 08.06.2000 of the learned Labour Court No. IX, Tis Hazari Courts, Delhi in [CASE NUMBER] whereby the Reference received vide notification no. F.24(596)/85-Lab. 12543 dated 26.07.1985 to the effect : -
"Whether the services of Sh. [ENTITY] have been terminated illegally and / or unjustifiably and if so, to what relief is he entitled and what directions are necessary in this respect."
which though answered in favour of the petitioner / workman to the extent that it was held that the termination of the services of the petitioner / workman was illegal for non-compliance of [SECTION] of the [ACT], but did not grant reinstatement of the petitioner / workman and also declined the grant of back wages, however, awarded compensation equivalent to four years service @ last drawn wages i.e. to the extent of Rs.15,000/- towards reinstatement.
2. Notice having ben issued to the respondent no. 2, arguments have been addressed on behalf of either side and written submissions of the petitioner / workman and the respondent no. 2 are on record, the respondent no. 1 arrayed on record being the learned Presiding Officer, Labour Court IX, Tis Hazari Court, Delhi.
3. A bare perusal of the impugned award which has not been challenged by institution of any cross objection by the respondent no.2 brings forth to the effect that the petitioner / workman who was in regular employment of the respondent no. 2 i.e. M/s. Indian Institute of Foreign Trade at B-21, Institutional Area, South of IIT, New Delhi w.e.f. 08.09.1981 as a Junior Clerk on daily wages, had been so employed after he qualified a typewriting test conducted by the Management on 05.09.1981 and the petitioner / workman continuously worked with the respondent no. 2 from 08.09.1981 till 21.09.1983 when his services were terminated on 21.09.1983. The representations made on 13.10.1983 and 08.11.1983 by the petitioner / workman to the respondent no. 2 but the petitioner / workman was not reinstated and the petitioner / workman thus sent a demand letter dated 23.12.1983.
4. On the pleadings of the parties, issues framed by the learned Labour Court No. IX, Tis Hazari Courts, Delhi, were to the effect : -
"i). Whether the management is an 'industry' and the workman is a 'workman' under [ACT]? Onus on parties.
ii). Whether the reference is bad as pleaded in Preliminary objections (f) ? O.P.M.
iii). Whether the proper demand notice was served on the management ? If not, to what effect ? O.P.W.
iv). As per terms of reference ? O.P.W."
5. The contentions of the respondent no. 2 to the effect that the respondent no. 2 was not an 'industry' and that the petitioner was not a 'workman' under the [ACT], was decided against the management and in favour of the petitioner / workman with it having been held that the respondent no. 2 was conducting research for the benefit of industries in general and its report were published and sold and thus the respondent no. 2 was held to be falling within the category of an 'industry' in terms of [SECTION] of the [ACT] with it having been held also that the petitioner thus fell within the domain of [SECTION] of the said enactment as a 'workman'.
6. Issue no. 2 related to the objection raised by the respondent no. 2 to the effect that the appropriate government had not supplied its no objection before sending the reference, which was rightly held to be inappropriately raised in as much as the appropriate government had no jurisdiction to adjudicate rival contentions and necessarily had to send the reference that was made to the Labour Court.
7. Issue no. 3 was also decided against the respondent no. 2 and in favour of the petitioner observing to the effect that the petitioner had duly served the notice Ex.WW1/27 vide UPC and through registered AD post as per Ex.WW1/28 & Ex.WW1/29 on the respondent no. 2.
8. Apparently, there is no infirmity in relation to these observations aforementioned qua issue nos. 1, 2 & 3 as were framed on 14.05.1987.
9. As regards issue no. 4, it was observed by the learned Labour Court No. IX, Tis Hazari Courts, Delhi to the effect : -
"17. The crux of the case lies in determination of this issue, A/R of the management strongly relied upon appointment letters copies of which are Ex.WW1/1 to Ex.WW1/26 to make out that each appointment was for a specific period mentioned therein. I have given my due thought to the matter. Firstly, the break given on each occasion is that of two to 3 days only. The same are artificial breaks. It was held in [PRECEDENT] that repeated appointments and terminations before completion of 240 days to deprive workman of benefit, is unfair labour practice. Recently, in [PRECEDENT] it was held that when there are artificial breaks it is a continuous service.
18. The another way of looking at the matter is that daily wages can be included under [SECTION] which was inserted on the statute book by way of amendment that come into force with effect from 1.8.84. Earlier the law was that even termination of a daily wager amounted to retrenchment. For this reference with advantage can be made to decision Hon'ble Supreme Court in [ENTITY]'s case reported as [PRECEDENT] and [PRECEDENT].
19. Undisputedly the workman completed 240 days in a calendar year and so compliance of [SECTION] was must. But the management did not do that and so its action cannot be sustained as per [CASE NUMBER].
20. What follows from the above is that termination of the workman was illegal. Anyhow period of 17 years has passed and now it will not be conducive to order his reinstatement. Only a lump sum compensation can be granted as per latest DB decision of our own Hon'ble High Court reported as [CASE NUMBER]. The workman rendered service for 2 years and length of service is one of the relevant factors as per [PRECEDENT].
21. Keeping in view the facts and circumstances of the case grant of compensation equivalent to 4 years service @ last drawn wages would come out to approximately Rs.15.000/- towards reinstatement would meet the ends of justice.
22. As regard back wages it may be observed that workman has not made even an iota of allegation in the statement of claim that he was unemployed since termination or that he made any effort to find alternative job. Same is the fate of affidavit Ex.WW1/A. It was held in [CASE NUMBER] that where there is assertion that workman remained unemployed, no back wages can be granted. In this background reliance by workman on [CASE NUMBER] and [CASE NUMBER] to the effect that awarding back wages without increment is not justified, is unfounded."
10. As regards the observations made by the learned Labour Court No. IX, Tis Hazari Courts, Delhi holding that the services of the petitioner / workman had been illegally terminated without compliance of the [SECTION] of the [ACT], apparently there is no infirmity in the said findings in as much the petitioner / workman having worked for more than 240 days in a calendar year from the date of having joined the services of the respondent no. 2 on 08.09.1981 till his services were terminated on 21.09.1983, with deliberate artificial breaks having been given by the respondent no. 2 in making appointment of the petitioner / workman and terminating him before completion of 240 days to deprive him of the benefit of the [ACT], which was an unfair labour practice, it has rightly been held by the learned Labour Court that the services of the petitioner / workman had been illegally terminated.
11. The prayer made by the petitioner is thus confined to the extent that the back wages, attendant benefits, increments etc. have not been granted to the petitioner / workman apart from reinstatement with and continuity of service and promotional benefits having not been granted, be so granted.
12. It has been observed by the learned Labour Court No. IX, Tis Hazari Courts, Delhi that as on the date of illegal termination of the services of the petitioner / workman on 21.09.1983 when the award was made on 08.06.2000, a period of 17 years had passed and it was not possible to order reinstatement of the petitioner / workman. Apparently for maintenance of cordiality in industrial relations in view of the lapse of number of years now from the date 21.09.1983 as also the number of years that had lapsed till the date of the pronouncement of the inappropriate award on 08.06.2000, the non-grant of reinstatement to the petitioner / workman by the learned Labour Court No. IX, Tis Hazari Courts, Delhi cannot be faulted with taking into account that the services rendered by the petitioner / workman was for a period of a letter more than two years.
13. The Office Order No. 2(5)/81-Admn. dated 07.09.1981 vide which the petitioner / workman was engaged as a Junior Clerk for a period of one month w.e.f. 08.09.1981 indicated that the wages to be paid to the petitioner / workman were Rs.15 per day inclusive of the payment of weekly off / holidays and the said terms were reiterated vide Office Order No. 2(5)/81-Admn. dated 13.10.1981, vide Office Order No. 2(5)/81-Admn. dated 16.11.1981, vide Office Order No. 2(5)/81-Admn. dated 17.12.1981, vide Office Order No. 2(5)/81- Admn. dated 04.01.1982, vide Office Order No. 2(5)/81-Admn. dated 20.01.1982, vide Office Order No. 2(5)/81-Admn. dated 06.02.1982, vide Office Order No. 2(5)/81-Admn. dated 08.03.1982, vide Office Order No. 2(5)/81-Admn. dated 12.04.1982, vide Office Order No. 2(5)/81-Admn. dated 15.06.1982, vide Office Order No. Admn.2(5)/81 dated 16.07.1982, vide Office Order No. Admn.2(5)/81 dated 17.08.1982, vide Office Order No. Admn.2(5)/81 dated 18.09.1982, vide Office Order No. Admn.2(5)/81 dated 19.10.1982, vide Office Order No. Admn.2(5)/81 dated 23.11.1982, vide Office Order No. Admn.2(5)/81 dated 24.12.1982, vide Office Order No. Admn.2(5)/81 dated 25.01.1983, vide Office Order No. Admn.2(5)/81 dated 28.02.1983, vide Office Order No. Admn.2(5)/81-Vol.II dated 30.03.1983, vide Office Order No. Admn.2(5)/81 dated 02.05.1983, vide Office Order No. Admn.2(5)/81 dated 04.06.1983, vide Office Order No. Admn.2(5)/81 dated 05.07.1983, vide Office Order No. Admn.2(5)/81 dated 06.08.1983 and vide Office Order No. Admn.2(5)/81 dated 06.09.1983 vide which it was extended upto 07.09.1983.
14. A catena of verdicts was relied upon on behalf of the petitioner:-
"1. [PRECEDENT] dated 07.09.1978 (1997) 2 SCC 80,
2. [PRECEDENT] dated 12.08.2013 (2013) 10 SCC 324,
3. [PRECEDENT] dated 13.01.2015 (2015) 4 SCC,
4. [PRECEDENT],
5. [PRECEDENT] dated 12.05.2015, [CASE NUMBER] and
6. [PRECEDENT]."
to contend that in as much there was no fault of the petitioner, reinstatement and full back wages ought to have been granted to him in as much as the termination of his services was blatantly illegal.
15. It is essential to observe however that as rightly observed by the learned Labour Court No. IX, Tis Hazari Courts, Delhi that there is not a whisper of an averment in the claim of the petitioner / workman that the petitioner / workman had continued to remain unemployed since the termination of his services or that he was not able to find any alternative job and that in the circumstances no back wages could be granted to him.
16. On behalf of the respondent, reliance was placed on the verdict of the Hon'ble Division Bench of this Court in the case titled as [PRECEDENT] wherein it has been observed to the effect : -
"27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back-wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back-wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back-wages."
and thus in the said case where the matter related to an interregnum of 31 years from the date of illegal termination of services of the workman till the date before it was so decided in the [CASE NUMBER], it was held that directing reinstatement of the workman would result in several hypothetical questions in relation to the seniority, promotion etc. and would be unfair to the management and in the circumstances of that case, the workman was directed to be paid a sum of Rs.50,000/- in addition to the amount that had been directed to be paid during the pendency of the petition.
17. It is essential to observe that in the case titled as [PRECEDENT] dated 17.11.2014, a verdict of this Court, it has been observed to the effect :-
"11. Having considered the rival submissions of the counsels for the parties, I do not find any infirmity in the order of the Labour Court. It is a settled position of law that even if termination has been held to be illegal, reinstatement with full back wages is not to be granted automatically. The Labour Court is within its right to mould the relief by granting a lump-sum compensation. In fact, I note that the Labour Court has relied upon three judgments propounding the law that the Labour Court can mould a relief by granting lump sum compensation; the Labour Court is entitled to grant relief having regard to facts and circumstances of each case."
18. The Hon'ble Supreme Court in [PRECEDENT] held that the POLC-XVII, KKD, Delhi having held the termination of the services of the petitioner to be illegal, she ought to have been directed to be reinstated with full back wages in as much as there was nothing on record.
19. The Hon'ble Supreme Court in [PRECEDENT], it was held that the reinstatement in the job with continuity of services of full back wages ought to have been granted to the petitioner by the POLC-XVII, KKD, Delhi when termination of her services had been held to be illegal.
20. The observations of the Hon'ble Supreme Court in [PRECEDENT] observe to the effect that:-
"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."
21. The verdict of this Court in The [PRECEDENT] dated 25.08.2011 likewise holds that reinstatement ought to have been granted to the petitioner therein in as much as the work done by her as a safai karamchari was similar in nature of work to those performed by others in regular service.
22. The verdict of the Hon'ble Single Bench Judge of this Court in [PRECEDENT] in which it was observed to the effect that the workman was entitled to compensation in lieu of reinstatement and the Labour Court during the course of hearing had inquired the age of the respondent/workman and it was ascertained that he still had about 10 years of service left and the compensation amount of Rs. 75,000/- only given was enhanced to Rs. 4 lakhs. This judgment was assailed by the workman vide [CASE NUMBER] whereby the Hon'ble Division Bench of this Court vide verdict dated 02.12.2010 enhanced the compensation from Rs. 4 lakhs to Rs. 6 lakhs and it was thus reiterated on behalf of the petitioner that the amount of lump sum compensation even if so awarded ought to be enhanced.
23. Further, the Supreme Court in the following judgments held as under:
(a) In the matter reported as [PRECEDENT], the court has stated:
"However, even assuming that there had been a violation of [SECTION] and [SECTION] of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under [SECTION] must be exercised judiciously. The workman must be employed by State within the meaning of [SECTION] of the [ACT], having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs. 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as [PRECEDENT], the court has stated:
"23. Non-compliance with the provisions of [SECTION] of the [ACT], although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course.
25 The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam An appointment made in violation of the provisions of the Adhiniyam is void.
The same, however, although would not mean that the provisions of the [ACT] are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, MANU/SC/1213/2009 :
(2009) 15 SCC 327, the court has stated:
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure.
14. An order of retrenchment passed in violation of [SECTION] although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
24. The verdict of Hon'ble Supreme Court in [PRECEDENT] observes to the effect that relief of reinstatement is not automatic but it was for the Labour Court to consider the facts of each case to ascertain the relief that can be granted in terms of [SECTION] of the [ACT].
25. The verdict of the Hon'ble Supreme Court in [PRECEDENT] is also to the effect that "the relief of reinstatement with full back wages should not be granted automatically only because it was lawful to do so and that the grant of relief would depend on the fact situation of each case and would depend upon several factors, one of which was as to whether the recruitment was effected in terms of the statutory provisions operating in the field, if any."
26. The verdict of Hon'ble Supreme Court in case titled as [PRECEDENT] lays down to the effect that the grant of relief of reinstatement was not automatic and that for the said purposes certain relevant factors as for example nature of service, the mode and manner of recruitment i.e. whether the appointment had been made in accordance with the statutory rules so far as a public service undertaking was concerned, had to be taken into consideration.
27. The verdict of the Hon'ble Supreme Court in case titled as [PRECEDENT] is to the effect that a distinction has to be drawn between a daily wager and a regular employee's post for the purposes of a consequential relief and that where the length of engagement as a daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid.
28. To similar effect is the verdict of this Court in [PRECEDENT] decided on 07.08.2018 in W.P.(C) No. 3642/2015 (2018) IV LLJ 303 Del.
29. Taking the totality of the facts and circumstances of the case into account, which indicate that the petitioner / workman was a daily wager apparently from the date of his appointment i.e. 08.09.1981 till the date 21.09.1983 @ Rs.15 per day and that the petitioner / workman had not been appointed as a regular employee on the basis of any regular employment, it is held that the respondent no. 1 had rightly not granted the relief of reinstatement and full back wages with attendant benefits of increments and promotional benefits to the petitioner / workman.
30. However, the compensation awarded vide award dated 08.06.2000 of Rs.15,000/- in toto in the facts and circumstances of the case where there has been an illegal termination of the services of the petitioner / workman in violation of the [SECTION] of the [ACT] is meagre and it is considered appropriate to enhance the payment of the amount of compensation of the awarded amount from Rs.15,000/- as awarded thereby to Rs.80,000/-, which is directed to be paid to the petitioner / workman by the respondent no. 2 within a period of two months from the date of the judgment failing which the respondent no. 2 would be liable to additionally pay interest @9% per annum on the amount of Rs.80,000/- w.e.f. today i.e. 07.05.2019 till the realization thereof. This amount of Rs.80,000/- includes the amount of Rs.15,000/- directed to be paid to the petitioner / workman by the respondent no. 2 vide the impugned award.
31. The petition [CASE NUMBER] and [CASE NUMBER] are disposed of accordingly.
[ENTITY], J th May 7 , 2019/mk