C. M. Nayar ( 1 ) THIS writ petition has been filed for an appropriate writ,direction and order to the respondents to treat the petitioner as an employee ofdelhi Administration after the take over of Harijan Udyogshala in November, 1977and for payment of salary and allowances of the petitioner as Medical Officer. ( 2 ) THE brief facts are that Harijan Sewak Sangh was running an Institutionunder the name of Harijan Udyogshala at Kingsway Camp, Delhi-9 since the year1936 whose purpose was to give Industrial Training to the students enrolled withthe Institution. The said Institution had been recognised by the Central Government, Ministry of Labour, Delhi Administration and the Municipal Corporation ofdelhi. It was affiliated with the National Council of Training in vocational trades,which is a wing/department of Ministry of Labour, Government of India. Theexaminations used to be conducted by the Directorate of Training and Technicaleducation, Delhi Administration and the certificates were issued to the successfulcandidates by the Ministry of Labour, Government of Iia. 90 per cent of the salaryof the employees/staff was paid by the Government of India. The Municipalcorporation of Delhi also gave financial aid to run dispensary in the said Institutionby Harijan Sewak Sangh and, there were about 29 members of the staff includingthe petitioner in Harijan Udyogshala. The petitioner was employed as a Medicalofficer Incharge of the Dispensary in the premises of the Institution for the benefitof the staff and students of the said Institute as well as for outdoor patient. ( 3 ) THE petitioner was a member of the staff since 1955 and his name appearedon the attendance register and he was paid salary by the Harijan Udyogshala fromthe funds of the said Udyogshala. The petitioner is a qualified Vaid and is theregistered medical practitioners in Ayurvedic. He is registered with the Board ofayurvedic and Unani system of medicine, Delhi State and his name appears in the listof persons, in practice, belonging to the indigenous system under Sub-section 2 ofsection 34 of the East Punjab Ayurvedic and Unani Practitioners (Delhi Amendmentact) 1963. The petitioner had qualified from Bihar State and has been practicingsince the year 1948. The work of the petitioner was highly satisfactory and thehealth Department of the Municipal Corporation of Delhi regularly checked thework of the petitioner, who was a Medical Incharge of the Dispensary at therelevant time. The petitioner had qualified from Bihar State and has been practicingsince the year 1948. The work of the petitioner was highly satisfactory and thehealth Department of the Municipal Corporation of Delhi regularly checked thework of the petitioner, who was a Medical Incharge of the Dispensary at therelevant time. It is reiterated in the writ petition that the petitioner possessed therequisite qualification and experience for the post of Medical Officer Incharge ofthe Dispensary of Udyogshala. ( 4 ) THE Lt. Governor of Delhi in the month of November, 1977, decided to takeover the staff along with the equipments and machinery ofharijan Udyogshala forrunning Industrial Training Institute at Nand Nagri. It had been decided that thesaid Institution will be taken over with all its assets, liabilities and staff. It is furthersubmitted that the start of the said institution was to be taken in the employmentof Government service and was to be given all the benefits for its service renderedin Udyogshala. This is evident from the communication dated 28/12/1977,which was addressed to Shri R. K. Bhalla, Deputy Secretary (Medical) Delhi Administration by Shri V. P. Suri, Joint Director of the Department of Training andtechnical Education, Delhi Administration. The same reads as follows: "v. P. SURIJT. DIRECTOR Directorate of Trainingand Technical Educationrouse Avenue: New Delhino. F. 21 (63)/admn/et-l/77/23242dated 28/12/1977. Dear Shri Bhatia,harijan Sewak Sangh, which is an All India Body of the Scheduled Castes andscheduled Tribes, has been running Harijan Udyogshala at Kingsway Campfor the last 30 years. The Lt. Governor had decided to take over the staff alongwith the equipments and machinery of the Harijan Udyogshala for runningiti Nand Nagri and accordingly, the ITI Nand Nagri has been started w. e. f. 4/11/1977 as a Guest Institute in the premises of Harijan Udyogshala. Most of the staff who was qualified according to the Recruitment Rules hasbeen appointed in the Directorate, but there are five cooks whose particularsare given below, who were working in the hostel attached with the erstwhileharijan Udyogshala and it was decided by the Lt. Governor that they mayalso be given some alternate jobs, if not, in the Directorate, in some otherinstitutions under the Administration. Since there might be some posts ofcooks vacant in the hospitals under the Administration, it is requested thatthe above persons may be absorbed against the vacancies in the hospitals ascooks. S. No. Name of Official Date of Aptt. Date of birth1. Sh. Basant Ramh 5. 2. Since there might be some posts ofcooks vacant in the hospitals under the Administration, it is requested thatthe above persons may be absorbed against the vacancies in the hospitals ascooks. S. No. Name of Official Date of Aptt. Date of birth1. Sh. Basant Ramh 5. 2. 1945 15. 4. 19272. Shri Sant Ram 10. 9. 1955 11. 2. 19403. Shri Gopal Singh 1. 1. 19674 27. 11. 19484. Shri Sukh Ram 11. 9. 1971 7. 2. 1945as regards the relaxation to be given in the matter of age, the same may begiven upto the extent of the period spent by them under the employment ofharijan Sewak Sangh at Harijan Udyogshala , Kingsway Camp becausesimilar relaxation to other employees has been accorded by the Lt. Governor. If appointed, these cooks will be required to undergo medical examinationand character verification by police will also have to be done before appoint-ment. Their appointments will also be considered as fresh appointment ingovernment Serviceyours sincerely,sd/- (V. P. Suri)" ( 5 ) ANNEXURE B is the communication dated 14/12/1977, from Shrikishore, Member of Parliament, Lok Sabha to Mrs. Reva Nayyar, who at that timewas Director, Department of Training and Technical Education. This letter mentions about the absorption of staff working at Harijan Udyogshala, Kingswaycamp and for counting their past service. It is, therefore, contended that thepetitioner stood transferred on take over in the employment of the respondentsalong with the other members of the staff of Harijan Udyogshala from the date thesaid Udyogshala has been taken over by respondents 1 to 3. This process of takeover was w. e. f. 4/11/1977, even though the decision to take over was takenprior to that date. ( 6 ) THE petitioner contends in the writ petition that he became the employee ofrespondents 1 to 3 with effect from 4/11/1977, on the same terms andconditions, emoluments as well as continuity of service and respondents are liableto pay on that basis with effect from that date. The respondents took over the saidudyogshala with all its assets and liabilities and the dispensary of which thepetitioner was the Medical Officer was also taken over, as it was part and parcel ofthe Harijan Udyogshala. The respondents took over the saidudyogshala with all its assets and liabilities and the dispensary of which thepetitioner was the Medical Officer was also taken over, as it was part and parcel ofthe Harijan Udyogshala. The petitioner continued to be in the employment of therespondents and as he was not issued any letter of absorption, he made severalrepresentations to the respondents from 4/11/1977, to give him duty andpay and allowances of his post since the date of take over. Reference may be madeto the letter of Shri V. P. Suri, Joint Director, Directorate of Training and Technicaleducation to the Municipal Commissioner of Delhi for absorption of the petitioner. This communication may be reproduced as under: "v. P. SURIJOINT DIRECTOR Directorate of Trainingand Technical Educationrouse Avenue, New Delhi. No. F. 21 (63)/admn. /et. I/77244042dated 2. 2. 1978the Municipal Commissioner,municipal Corporation of Delhi, Town Hall,delhi. Subject: Absorption of surplus staff of erstwhile Harijan Udyogshala Kingswaycamp. Sir,i am directed to say that this Administration has started I. T. I. Nand Nagri inthe premises of erstwhile Harijan Udyogshala being run by all India Harijansewak Sangh. The Lt. Governor, Delhi has been pleased to order that all thesurplus staff may be absorbed in the vacant posts in the Administration forwhich they are qualified. He has given relaxation of age and also relaxationfor sponsoring of candidates from Employment Exchange. Out of 29 employees, 12 have already been absorbed in this Directorate while the names ofothers have been sent to various departments of the Administration. Dr. Chander Singh, who was Medical Officer of Harijan Udyogshala is aregistered Medical Practitioner in Ayurvedic and since there is a no Ayurvedie dispensary under this Directorate, it is not possible to absorb him in anypost. The matter was discussed in the room of Chief Executive Councillor on5. 1. 1978 wherein it was decided that bio-data may be sent to you with therequest that if his qualifications fit in, he may be absorbed. It is, therefore, requested that necessary action at your end may kindly betaken and this Administration may be apprised accordingly so that a reportmay be submitted to the Chief Executive Councillor. Yours faithfully,sd/- (V. P. Suri)Joint Director. "the representation submitted by the petitioner dated 23/06/1978, isannexure d to the writ petition and thereafter reminders were sent on 3/08/19 7/09/1978 and 24/10/1978 respectively. (Annexures e , "f and g to the writ petition ). Yours faithfully,sd/- (V. P. Suri)Joint Director. "the representation submitted by the petitioner dated 23/06/1978, isannexure d to the writ petition and thereafter reminders were sent on 3/08/19 7/09/1978 and 24/10/1978 respectively. (Annexures e , "f and g to the writ petition ). The petitioner felt aggrieved as he did not receive anycommunication from the respondents nor he was absorbed and given any chargeand duty and he was left with no option but to approach this Court by the presentpetition under Article 226 of the Constitution of India. ( 7 ) RULE was issued in the writ petition as far back as 14/05/1979 and despiterepeated opportunities no reply has been filed. The respondents have only cared tofile a short reply when the petitioner filed an application being C. M. No. 580/91 forearly hearing of the writ petition. The take over of the Institution by Delhiadministration in the year 1977 is admitted. The relevant paragraph may be citedas follows: "purpose of the institution was to make the children belonging to SC categoryto such a status so that they may be able to adjust in higher social circle. From 20/09/1962 the said Institution was affiliated to National Councilfor Training in Vocational Trades (NCTVT) which is working under All Indianational Industrial Training Scheme. The said Institution was taken over bydelhi Administration in 1977 and started functioning in the name of I. T. I. N. N. in the same premises of Harijan Udyogshala. "it is, however, stated in the reply that "a decision was taken in consultationwith the representative of the Secretary of the erstwhile Harijan Sewak Sangh thatonly those employees would be absorbed in the new posts who will fulfil therequisite educational and technical qualifications. The Medical certificates wouldbe necessary for all of them". The point regarding absorption of petitioner ingovernment service was also considered and it was stated that there was no postof Vaid and in view of this, the matter was referred to Municipal Corporation ofdelhi for his absorption, but they were reluctant to absorb him on the post of Vaidor Compounder as he did not fulfil the requisite qualifications for the said post, asper the Recruitment Regulations prevailing at that time. The relevant portion of thecommunication dated 24/11/1978, to the petitioner reads as follows: "memorandumwith reference to his representation dated 24/10/1978 sent by Shrichander Singh Garhdeshi to the Director of Training and Technical Education,he is informed that his case has been thoroughly examined a number of timesand he was informed of the position vide this Directorate s letter of evennumber dated 4/10/1978 also. He is once again informed that since he does not possess academic qualifications for any of the posts of Vaid or Compounder in the Municipal Corporation, his case cannot be considered for absorption in the Municipal Corporation of Delhi. In Delhi Administration, there are no Ayurvedic dispensary. Even, he cannot be appointed as Pharmacist in any dispensary in Delhiadministration because he does not fulfil required qualifications as laiddown for the post of Pharmacist. " ( 8 ) THE learned Counsel for the petitioner has vehemently argued that thepetitioner was Medical Incharge of the Dispensary, which was being run at Harijanudyogshala Kingsway Camp and, therefore, there was no question of his beingdeprived of the job after absorption, when he had already put in more than 22 yearsof service as member of the staff of Harijan Udyogshala till the date of take over inthe year 1977. He had continued to work since 1955. The name of the petitionerappeared on the attendance register and he was paid salary by the said Udyogshalafrom the funds of the Udyogshala. The staff of the said Institution was to be takeninto employment in the Government service and the said staff was to be given allthe benefits of its service, rendered in Udyogshala such as continuity of service,superannuary and other benefits. The respondents have made a false submissionthat the petitioner was not qualified, as he was Medical Officer Incharge of thedispensary, as stated above, and in this context he could not be deprived of thatstatus on false and flimsy grounds. The other staff of the Udyogshala was absorbedand the petitioner has been treated in arbitrary and discriminatory manner, whichviolates the provisions of Article 14 of the Constitution. ( 9 ) LASTLY, it is contended that the respondents appointed someone else in theayurvedic Dispensary, which was taken overby them and thus deprived thepetitioner of his job and emoluments. The other staff of the Udyogshala was absorbedand the petitioner has been treated in arbitrary and discriminatory manner, whichviolates the provisions of Article 14 of the Constitution. ( 9 ) LASTLY, it is contended that the respondents appointed someone else in theayurvedic Dispensary, which was taken overby them and thus deprived thepetitioner of his job and emoluments. The Dispensary where petitioner was basedprior to the take over continued to function and the services of the petitioner couldhave been utilised in the same Dispensary and it is wrong on the part of therespondents to contend now that he was not qualified and was ineligible under therules. ( 10 ) THE matter was argued at length by the Counsel for the petitioner anddespite repeated opportunities, no-one has put in appearance for the respondents. ( 11 ) I have taken all the facts of the case and the contentions of Counsel for thepetitioner into consideration and find great force in them. The petitioner wasworking as a Medical Officer of the Ayurvedic Dispensary and he was dulyqualified in his profession. The Administration adopted a careless and callousattitude not to provide even any alternative job to the petitioner. They could havecontinued him in the same Dispensary where he was working as Medical Officerand had been a member of the staff at Harijan Udyogshala from the year 1955. ( 12 ) THE Counsel for the petitioner has brought to my notice the provisions ofsection 17 (3) Sub-clauses (a), (c) and (d) of the Indian Medicine Central Councilact, 1970, to indicate that the petitioner possessed the requisite qualifications andhe has been erroneously and arbitrarily deprived the right of absorption in the Government service. There is also force in this contention as no document has been filedby the respondents nor anyone has canvassed this proposition on their behalf thatthe petitioner was not qualified and in case he was not qualified there was nonecessity on the part of the Delhi Administration to remove him from the Dispensary, which he was already running as Medical Officer Incharge and to post someone else in his place. There has been no serious attempt to rehabilitate thepetitioner who suddenly became disqualified to hold the job, which he wasmanning for years. This action itself is arbitrary and irrational. There has been no serious attempt to rehabilitate thepetitioner who suddenly became disqualified to hold the job, which he wasmanning for years. This action itself is arbitrary and irrational. ( 13 ) THE respondents have, therefore, illegally taken away the right of thepetitioner to work contrary to the conditions of take-over and, therefore, deprivedthe petitioner of his earnings during all this long period. The impugned action isconsequently held as invalid and illegal. The petitioner has already reached the ageof superannuation and the question of relief will now arise in terms of monetarycompensation. It has been fairly conceded by the learned Counsel for the petitionerthat the petitioner being a qualified Vaid and an Ayurvedic Expert has often donesome private consultancy work for part of the period since the take-over in the year1977. But, this has never been sufficient to sustain him during the difficult times ofunemployment and misery which was thrust upon him by the respondents and bythe action of take over which actually cost the petitioner his job. The respondentshave failed to fulfil its obligations which arose as a result of take-over and theirattitude has been careless, callous and arbitrary. The same needs to be condemned. . In case, the petitioner was absorbed he would have ordinarily continued to workand earned his salary as well as other benefits, which go with the Governmentservice. The normal rule is full back wages except to the extent he was gainfullyemployed during this enforced idleness and in this context I would refer to thefollowing passage from the judgment of the Supreme Court in M/s. Hindustan Tinworks Pvt. Ltd. v. The Employees of Mis. Hindustan Tin Works Pvt. Ltd. andothers, AIR 1979 Supreme Court 75, which reads as under: "it is no more open to debate that in the field of industrial jurisprudence adeclaration can be given that the termination of service is bad and theworkman continues to be in service. The spectre of common law doctrine thatcontract of personal service cannot be specifically enforced or the doctrine ofmitigation of damages does not haunt in this branch of law. The relief ofreinstatement with continuity of service can be granted where termination ofservice is found to be invalid. It would mean that the employer has takenaway illegally the right to work of the workman contrary to the relevant lawor in breach of contract and simultaneously deprived the workman of hisearnings. The relief ofreinstatement with continuity of service can be granted where termination ofservice is found to be invalid. It would mean that the employer has takenaway illegally the right to work of the workman contrary to the relevant lawor in breach of contract and simultaneously deprived the workman of hisearnings. If thus the employer is found to be in the wrong as a result of whichthe workman is directed to be reinstated, the employer could not shirk hisresponsibility of paying the wages which the workman has been deprived ofby the illegal or invalid action of the employer. Speaking realistically, wheretermination of service is question as invalid or illegal and the workman hasto go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may notsurvive to see the day when relief is granted. More so in our system where thelaw s proverbial delay has become stupefying. If after such a protracted timeand energy consuming litigation during which the period the workman justsustains himself, ultimately he is to be told that though he will be reinstatedhe will be denied the back wages which would be due to him the workmanwould be subjected to a sort of penalty for no fault of his and it is whollyundeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent hewas gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity ofthe employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz. , to resist the workmen s demand forrevision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should befollowed with full back wages. Articles, 41 and 43 of the Constitution wouldassist us in reaching ajust conclusion in this respect. By a suitable legislation,to wit, the UP Industrial Disputes Act, 1947, the State has endeavoured tosecure work to the workmen. In breach of the statutory obligation the serviceswere terminated and the termination is found to be invalid; the workmenthough willing to do the assigned work and earn their livelihood, were keptaway therefrom. By a suitable legislation,to wit, the UP Industrial Disputes Act, 1947, the State has endeavoured tosecure work to the workmen. In breach of the statutory obligation the serviceswere terminated and the termination is found to be invalid; the workmenthough willing to do the assigned work and earn their livelihood, were keptaway therefrom. On top of it they were forced to litigation up to the apexcourt and now they are being told that something less than full back wagesshould be awarded to them. If the services were not terminated the workmenordinarily would have continued to work and would have earned theirwages. When it was held that the termination of services was neither propernor justified, it would not only show that the workmen were always willingto serve but if they rendered service they would legitimately be entitled to thewages for the same. If the workmen were always ready to work but they werekept away therefrom on account of invalid act of the employer, there is nojustification for not awarding them full back wage which were very legitimately due to them. " ( 14 ) IN view of the facts and circumstances of the present case, I will award 50per cent of the back wages to the petitioner with effect from 4/11/1977 whenthe take over of Harijan Udyogshala took place, till the date of his superannuation. He will also be entitled to Gratuity, Pension and all superannuary benefits to whichhe will be entitled in accordance with the Rules and as permissible in law. Thepayments and other benefits, which shall now accrue to the petitioner, shall be paidwithin two months from today. The writ petition is allowed in the above terms and the Rule is made absolute. The petitioner shall also be entitled to costs, which are quantified at Rs. 5,000. 00.