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2023 DIGILAW 1256 (DEL)

Municiapl Corporation of Delhi v. Ravinder Kumar

2023-02-28

GAURANG KANTH

body2023
JUDGMENT Gaurang Kanth, J. The present petition has been preferred under Article 226 of the Constitution of India. The petitioner through the present petition is challenging the validity of the award dated 14.05.2003 (" impugned award ") passed by the Presiding officer, Labour Court no. IX, Karkardooma, Delhi in I.D. No. 144/94 titled as " M/s Commissioner of Municipal Corporation of Delhi And Shri Ravinder Kumar ". 2. Vide the impugned award, the learned Labour Court held that the Petitioner/management has illegally refused the Respondent/workman duty on 02.01.1993. Learned Labour Court granted compensation in lieu of reinstatement. Learned Labour Court awarded a compensation of 40% of the last wages which would have been admissible to him under Rules from 02.01.1993 in lieu of his reinstatement. 3. The learned Labour Court passed the impugned Award on 13.10.2003 and it became enforceable on 12.11.2003. The present Writ Petition filed in the year 2005. By that time, the Respondent approached the recovery officer for the implementation of the impugned award under Section 33 (C)(1) of the Industrial Disputes Act, 1947 (" I.D. Act ") and recovered the amount due to him for the period from 02.01.1993 to 30.04.2004. 4. The Petitioner filed the present Writ Petition under the misconception that the learned Labour Court has granted reinstatement with 40% back wages. Even the Respondent was under this misconception and hence he filed an Application under Section 17-B of the I.D. Act for subsistence allowance. The said Application was dismissed vide order dated 25.03.2010 directing the Registrar General of this Court to initiate proceedings against the Respondent/Workman under Section 340 Cr.P.C. The fact remains is that the learned Labour Court has granted 40% back wages from 02.01.1993 as compensation in lieu of reinstatement. 5. Be that as it may, this Court deems it appropriate to examine the legality of the impugned Award. FACTS RELEVANT FOR ADJUDICATION OF THE PRESENT WRIT PETITION 6. The Respondent/workman joined the service of the Petitioner/management as a Lorry Beldar on a daily/casual/muster roll basis w.e.f. 04.08.1998. 7. On 24.12.1992, an FIR bearing no. 250/92 was lodged against the Respondent u/s 406/498 A of the Indian Penal Code upon the complaint of his wife, Mrs. Geeta. On the basis of the same, the Respondent was arrested on 25.12.1992 and later was released from the judicial custody on 01.01.1993. 8. 7. On 24.12.1992, an FIR bearing no. 250/92 was lodged against the Respondent u/s 406/498 A of the Indian Penal Code upon the complaint of his wife, Mrs. Geeta. On the basis of the same, the Respondent was arrested on 25.12.1992 and later was released from the judicial custody on 01.01.1993. 8. The Respondent/workman reported back to the duty on 02.01.1993 and submitted an application along with an affidavit, stating the reason of absenteeism from duty as being away from Delhi due to some personal reason. The Respondent failed to disclose to the Petitioner/Management about the factum of his involvement in FIR bearing No.250/92 or his arrest thereof. 9. It has been alleged by the Respondent/Workman that the Petitioner/Management did not allow him to join duty after 25.12.1992 and his services were illegally terminated w.e.f. 25.12.1992 Aggrieved by the aforesaid refusal to join back on duty, the Respondent/workman raised an industrial dispute. 10. The appropriate government on being satisfied regarding existence of an industrial dispute between the parties, referred the said dispute to the Learned Labour Court with the following terms of reference: "Whether the termination of services of Shri Ravinder Kumar is illegal and/or unjustified by the management and if so, to what relief is he entitled and what directions are necessary in this respect?" 11. The Respondent/workman filed his Statement of claim wherein it was averred that his services were terminated illegally without furnishing any reason, which is violative of Section 25-F, G and H of the I.D. Act. It was further alleged that S.I. Shri Vijay Singh Nagar denied the Respondent/workman his job and instead demanded illegal gratification from Respondent/workman in return of taking him back into the service. It was also averred that the Petitioner/management had employed persons on regular nature of job and continues to treat them as daily rated/casual workers which amounts to `unfair labour practice' as provided under Section 2(ra) read with Item no.10 of the Vth schedule of the I.D. Act. 12. To counter the allegations levelled by the Respondent/workman, the Petitioner/Management filed written statement wherein it was stated that the Respondent/workman was running willfully absent from duty since 25.12.1992. It was contended that the management sent a call back notice dated 04.01.1993 directing Respondent/workman to join the duty, however, he did not turn up. 12. To counter the allegations levelled by the Respondent/workman, the Petitioner/Management filed written statement wherein it was stated that the Respondent/workman was running willfully absent from duty since 25.12.1992. It was contended that the management sent a call back notice dated 04.01.1993 directing Respondent/workman to join the duty, however, he did not turn up. Also, Respondent/workman played a fraud upon the management by falsely deposing that he was absent due to some personal work whereas he was arrested on the charges of dowry by police. 13. Based on the pleadings of the parties, the Learned Labour Court framed the following issues on 23.05.1995: "1. Whether the workman had been absenting himself w.e.f. 25th of December 1992. 2. Relief in terms of the reference" 14. Meanwhile, on 31.07.1995, the Metropolitan Magistrate, Mahila court, Karkardooma courts, Delhi on the application of the Respondent's wife compounded the offences as alleged to be committed by the Respondent under case FIR No. 250 of 1992. 15. In order to prove his case, the Respondent/workman stepped into the witness box as WW1 . On the other side, the Petitioner/management examined Shri. S.L. Sharma, Sanitation Superintendent Shahdara, North Zone as MW1 . However, MW1 failed to appear before the Labour court for his cross-examination and therefore Shri. Dharam Pal Singh, ASI was cross-examined by the authorized representative of the Respondent/workman. 16. Upon hearing the rival contentions of the parties, the learned Labour Court vide the impugned award dated 14.05.2003 held that the Petitioner/management failed to prove that Respondent/workman has abandoned the job of his own. The learned Labour Court further adjudicated the dispute in favour of workman by holding that the Petitioner/management had illegally refused Respondent/workman duty on 02.01.1993 and hence awarded back wages @ 40% of the last wages admissible to him in lieu of reinstatement. 17. Presently, the Petitioner/management is impugning the validity of the aforesaid impugned award through the petition, seeking quashing of the same. 18. As mentioned hereinabove, both the parties are under the misconception that the learned Labour Court directed for the reinstatement with 40% back wages. However, the learned Labour Court granted compensation in lieu of reinstatement. SUBMISSIONS MADE ON BEHALF OF THE PETITIONER/MANAGEMENT 19. Ms. Jainika Mohan, learned counsel appearing on behalf of the Petitioner/management has submitted against the validity of the impugned award. However, the learned Labour Court granted compensation in lieu of reinstatement. SUBMISSIONS MADE ON BEHALF OF THE PETITIONER/MANAGEMENT 19. Ms. Jainika Mohan, learned counsel appearing on behalf of the Petitioner/management has submitted against the validity of the impugned award. It is submitted by the learned counsel that the learned Labour Court failed to appreciate that the Respondent/workman was running willfully absent from the duty from 25.12.1992 to 01.01.1993. Even a call back notice was served upon the Respondent on 04.01.1993 for directing him to join back duty, however he failed to report back to work. 20. Ms. Mohan further argues that the learned Labour Court while passing the impugned award overlooked the fact that the Respondent/workman falsely deposed in his affidavit with respect to the reason of his absence from duty for the aforesaid period. The Respondent/workman also falsely accused Shri Vijay Singh Nagar that he did not allow him to join duty. Such behavior of Respondent cumulatively amounts to playing fraud upon the Petitioner/management, and therefore, the Respondent/workman deserves to be terminated from the services on account of gross indiscipline and breach of trust. 21. It was submitted by the learned counsel that the learned Labour Court failed to appreciate that the Respondent/workman indulged in an offence involving moral turpitude as that of Bigamy. The act of the Respondent/workman of marrying again during lifetime of his first wife, amounts to gross misconduct and unbecoming of a public servant. Such offence of bigamy committed by the Respondent/workman is punishable under Section 494 IPC. The counsel has submitted that the Petitioner/management received an application on behalf of the second wife of the Respondent/workman wherein demand for maintenance of two children born out of this wedlock was claimed. 22. To bolster the arguments advanced, the learned counsel has relied upon the judgments delivered in Avtar Singh v. Union of India reported as (2016) 8 SCC 471 ; Rajasthan Rajya Vidyut Prasaran Nigam Ltd. v. Anil Kanwariya , reported as (2021) 10 SCC 136 ; M.C.D. v. Praveen Kumar Jain , reported as (1998) 9 SCC 468 . 23. With these submissions, learned counsel for the Petitioner prays for the setting aside of the impugned Award. SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT/WORKMAN 24. Per contra , Mr. Jawahar Raja, learned counsel appearing on behalf of the Respondent/workman vehemently argued against the merits of the present petition. 23. With these submissions, learned counsel for the Petitioner prays for the setting aside of the impugned Award. SUBMISSIONS MADE ON BEHALF OF THE RESPONDENT/WORKMAN 24. Per contra , Mr. Jawahar Raja, learned counsel appearing on behalf of the Respondent/workman vehemently argued against the merits of the present petition. The learned counsel has submitted that the Petitioner/management without following the provisions of the I.D. Act has terminated the services of the Respondent, which makes the said termination unfair and illegal. The scheme of the I.D. Act requires an employer to follow a due process of law at the time of terminating service of an employee. Whatsoever is the reason behind such termination, the employer cannot be permitted to escape the rigors of Chapter V-A of the I.D Act. 25. The learned counsel highlighted the objective behind the enactment of the I.D. Act. It is submitted that the Act was enacted to settle industrial dispute by safeguarding the rights of workers and to minimize arbitrariness of the employer while dealing with their workers. It has been further submitted by the learned counsel that there existed high handedness on the part of the management while terminating the service of the Respondent/workman. 26. Arguendo , it is submitted by the learned counsel that even if marital strife between the workman and his wife had adverse impact on his employment, the service could have been duly terminated only after giving an opportunity to the workman to present his case. It is further submitted that in present case, the management through its official, Shri Vijay Singh Nagar, capriciously denied the Respondent to join back the duty. Neither a termination letter was issued, nor any enquiry was conducted by the Petitioner/management for investigating into the charges of offence involving moral turpitude. 27. Learned counsel placed reliance upon the cross-examination of Shri Dharam Pal Singh, who was working as Assistant Sanitary Inspector with the Petitioner/management. It has been submitted that the statement given by Shri Dharam Pal Singh categorically suggests that the work of the Respondent was satisfactory, and he reported back to duty immediately upon his release from the judicial custody. 28. Moreover, the plea of absenteeism is vitiated since the call back letter as allegedly served by the Petitioner/management remains unproved. Such call back letter never reached the Respondent/workman. 28. Moreover, the plea of absenteeism is vitiated since the call back letter as allegedly served by the Petitioner/management remains unproved. Such call back letter never reached the Respondent/workman. With regards to the charges levelled upon the Respondent/workman by his wife, the counsel submitted that since the offence was compounded by the court, the same carries force of a clean acquittal. 29. Learned counsel has conceded to the fact that the Respondent deposed falsely in his affidavit, though in terrorem since there was a possibility of losing the job. Apart from that, even if Petitioner/management was convinced that the affidavit filed by the respondent was false, the appropriate protocol was to conduct an enquiry to investigate into the aforesaid charges. No opportunity of representation was furnished to the Respondent/workman to present his case before the Petitioner. It is further highlighted by the learned counsel that the issue framed by the learned Labour Court was restricted to the Respondent's absenteeism from the duty. No issue of false affidavit was taken up by the learned Labour Court nor objection was raised by the Petitioner/management regarding his false affidavit, therefore at the present stage, the Petitioner shall not be permitted to raise the aforesaid issue under Article 226 of the Constitution of India. 30. Lastly , the learned counsel submits that the limitations on the jurisdiction of the High Court under Article 226 of the Constitution were well-settled and such jurisdiction could only be invoked in cases of jurisdictional errors, breach of principles of natural justice and patent illegality. Drawing force from this submission, learned counsel argued that in view of the principles laid down in these cases, no ground was made out by the Petitioner/management to interfere with the impugned award under the writ jurisdiction. 31. With these submissions, learned counsel for the Respondent prays for the dismissal of the present writ Petition. LEGAL ANALYSIS 32. This Court had heard the arguments advanced by the learned counsel for both the parties and perused the documents on record and Judgments relied upon by the parties. 33. On perusal of the record it reveals that the two questions posed before this Court for the judicial consideration are (i) Whether the Respondent has abandoned his work with the Petitioner w.e.f. 25.12.1992 ? 33. On perusal of the record it reveals that the two questions posed before this Court for the judicial consideration are (i) Whether the Respondent has abandoned his work with the Petitioner w.e.f. 25.12.1992 ? (ii) If not, Whether Petitioner Management is right in terminating the service of the Respondent without following the relevant provisions of ID Act ? 34. Regarding the first issue, i.e. Whether the Respondent has abandoned his work with the Petitioner w.e.f. 25.12.1992 , the learned Labour Court held as follows: "After considering the evidence of both the parties and the various documents placed on record, I am of the opinion that the plea of absenteeism from duty by the workman is not proved. Though the management has placed on record copy of call back notice dt. 4/1/93, but no proof of service of said notice is placed on record. Moreover, the said letter also does not bear the signatures of the workman. It accordingly seems to me improbable that the workman would not have reported for duty after he was released. Accordingly, I am of the opinion that the management has failed to prove the fact that the workman Shri Ravinder Kumar has abandoned the job of his own. Issues is accordingly decided against the management and in favour of the workman. 35. It is the case of the Petitioner/Management that the Respondent/Workman abandoned the work w.e.f. 25.12.1992. The Petitioner issued a call back letter dated 04.01.1994 (Exhibit MW1/6). However, the Respondent failed to join back in service. Whereas it is the case of the Respondent that he was arrested by the police for the period from 25.12.1992 to 01.01.1993. Immediately thereafter he approached the Petitioner to join back in service. However, S.I. Mr.Vijay Singh Nagar refused to take him back into service. 36. Perusal of the record shows that the Petitioner placed on record application dated 17.01.1994 (Exhibit MW1/5) & Affidavit dated 15.01.1994 (Exhibit MW1/6). Vide the said Application, the Respondent was requesting the Petitioner to take him back in service. In the Affidavit, the Respondent stated that he could not attend duty from 25.12.1992 to 01.01.1993 because he had gone out of Delhi due to some circumstances of his family. Hence from these documents, it is evident that the Respondent approached the Petitioner to join back in service. Hence it is not correct to say that the Respondent abandoned the work w.e.f. 25.12.1992. Hence from these documents, it is evident that the Respondent approached the Petitioner to join back in service. Hence it is not correct to say that the Respondent abandoned the work w.e.f. 25.12.1992. The Petitioner issued a call back letter dated 04.01.1994 (Exhibit MW1/6). It is the case of the Respondent that he never received the said letter. The learned Labour Court, after examining the evidence placed on record held that the Petitioner failed to place on record any document to prove that the said letter was served on the Respondent. Be that as it may, from Exhibit MW1/4 & MW1/5, it is clearly evident that the Respondent approached the Petitioner with a request for reinstatement. 37. In view of the same, this Court is in agreement with the learned Labour Court that the Petitioner failed to prove that the Respondent abandoned the work w.e.f. 25.12.1992. 38. Now coming to the second question, whether the Petitioner is right in terminating the service of the Respondent without following the relevant provisions of I.D Act . 39. It is an admitted position that no termination letter was issued to the Respondent. There is no dispute to the fact that the Respondent/workman was in continuous employment for more than 240 days in the calendar year preceding 25.12.1992. The Respondent/workman was in an unauthorized absence from 25.12.1992 to 01.01.1993. After that the Respondent approached the Petitioner for joining back in service, However, he was not allowed to join back. It is also an admitted fact that in order to secure the reinstatement, the Respondent filed an application & affidavit concealing material facts from the Petitioner. The Respondent concealed that there was an FIR pending against him and he was arrested by the police for the period from 25.12.1992 to 01.01.1993. This is a serious lapse on behalf of the Respondent. The Respondent specifically stated in Exhibit MW1/4 that no criminal case is pending against him, whereas, the fact is that he was arrested and in police custody for almost a week. 41. The learned Labour Court examined this aspect and held as follows: "11. As regards issue no. 2 is concerned. The Respondent specifically stated in Exhibit MW1/4 that no criminal case is pending against him, whereas, the fact is that he was arrested and in police custody for almost a week. 41. The learned Labour Court examined this aspect and held as follows: "11. As regards issue no. 2 is concerned. I have considered the various aspects of the case, though the management has been successful in showing that the claimant Shri Ravinder Kumar has given an application thereby seeking leave along with affidavit on false ground of going out of station, but I am of the opinion that it is not all such a nature so that the workman can be thrown out of job. Admittedly in cross examination MW1, Shri Dharam Pal Singh, Assistant Sanitary Inspector Shahdara Zone stated that the workman continuously worked with the management up to 25th of December, 1992 and the management did not issue any termination order in writing. Moreover, from the judgement dated 31/7/95 passed by the court of Ms. Anu Malhotra, MM Mahiia Court, Shahdara the workman Shri Ravinder Kumar has been acquitted of the charges levelled against him after the compromise was arrived at with his wife and Shri Dharam Pal Singh stated that he was not aware if a compromise was arrived workman was arrested and that they would not allowed the duty to the workman in case the workman gives his joining report. MW1 further admitted that Shri Vijay Singh Nagar was posted in the said department of MOD. Accordingly, Shri Nagar ought to have appear in the court as a witness. 12. In the light of my above discussion, I am of the opinion that the workman has been successful in showing that the management has illegally refused him duty on 2/1/93. Accordingly, issue is decided in favour of the workman and against the management. 40. This Court examined the findings of the learned Labour Court. The Respondent concealed material facts from the Petitioner. Respondent remained in police custody for more than 48 hours. This Court is of the considered view that the learned Labour Court erred in brushing aside the said significant fact lightly. In case of a regular employee, this kind of misconduct will lead to immediate suspension followed by disciplinary proceedings for major penalty. The Respondent is a daily wager. Respondent remained in police custody for more than 48 hours. This Court is of the considered view that the learned Labour Court erred in brushing aside the said significant fact lightly. In case of a regular employee, this kind of misconduct will lead to immediate suspension followed by disciplinary proceedings for major penalty. The Respondent is a daily wager. Hence the Petitioner has valid reason for not allowing the Respondent to join back in duty. 41. However, the Petitioner failed to follow the mandatory provisions of section 25 F of the I.D. Act. As stated herein above, there is no dispute to the fact that the workman completed 240 days. Therefore, the Petitioner ought to have followed the mandatory provisions of Section 25 F of the I.D. Act before terminating the service of the Respondent. 42. The learned Labour Court granted the following relief to the Respondent. "As regards relief is concerned the workman Shri Ravinder Kumar is entitled for reinstatement, however, keeping in view the facts and circumstances of the case, I am of the opinion that the interest of justice would be meeted out in case the workman is awarded back wages 40% of the last wages which would have been admissible to him under the Rules from 2/1/1993 onwards." 43. Even though, this Court is of the view that the Petitioner is justified in not allowing the Respondent to join back duty, the Petitioner Management failed to follow the mandatory provisions of 25 F of the I.D. Act. In view of the violation of Section 25 F of the I.D. Act, the Respondent is entitled to compensation in lieu of reinstatement. Hence this Court is in agreement with the relief granted by the learned Labour Court, however restricting it to the date of the award. Hence the Respondent is entitled for 40% of his last drawn wages for the period from 02.01.1993 till the date of impugned Award as his compensation in lieu of reinstatement. Therefore, this Court while exercising its jurisdiction under Article 226 of the Constitution of India is modifying the impugned award only to this extent. 44. As mentioned herein above, the Respondent has already recovered the 40% of the wages for the period from 02.01.1993 to 30.04.2004 by invoking Section 33 (C) (1) of the I.D. Act. The said amount is in excess of his entitlement. 44. As mentioned herein above, the Respondent has already recovered the 40% of the wages for the period from 02.01.1993 to 30.04.2004 by invoking Section 33 (C) (1) of the I.D. Act. The said amount is in excess of his entitlement. Hence, the Petitioner is entitled to recover the extra amount from the Respondent in accordance with law, if so advised. 45. In view of the above discussion, relief as granted by the learned Labour Court is hereby modified to the above extent. 46. Accordingly, the present writ petition is disposed of in the above terms. Pending application also stands disposed of accordingly. Parties are left to bear their own costs.