Delhi High Court
Chander Singh Gardeshi vs Lt. Governor Delhi And Ors. on 23 February, 1994
Equivalent citations: 1994IAD(DELHI)841, 56(1994)DLT572
JUDGMENT C.M. Nayar, J.
(1) This writ petition has been filed for an appropriate writ,direction and order to the respondents to treat the petitioner as an employee of Delhi 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 San (3) The petitioner was a member of the staff since 1955 and his name appeared on the attendance register and he was paid salary by the Harijan Udyogshala from the funds of the said Udyogshala. The petitioner is a qualified Vaid and is the registered medical practitioners in Ayurvedic. He is registered with the Board of Ayurvedic & Unani system of medicine, Delhi State and his name appears in the list of persons, in practice, belonging to the indigenous system under Sub-section 2 of Section 34 of the East Punjab Ayurvedic & Unani Practitioners (Delhi AmendmentAct) 1963. The petitioner had qualified from Bihar State and has been practicing since the year 1948. The work of the petitioner was highly satisfactory and the Health Department of the Municipal Corporation of Delhi regularly checked the work of the petitioner, who was a Medical in charge of the Dispensary at the relevant time. It is reiterated in the writ petition that the petitioner possessed the requisite qualification and experience for the post of Medical Officer in charge of the 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 of Harijan Udyogshala for running Industrial Training Institute at Nand Nagri. It had been decided that the said Institution will be taken over with all its assets, liabilities and staff. It is further submitted that the start of the said institution was to be taken in the employment of Government service and was to be given all the benefits for its service rendered in 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 and Technical Education, Delhi Administration. The same reads as follows: "V.P.SURIJT.DIRECtorDirectorate of Training& Technical Education Rouse 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 &Scheduled Tribes, has been running Harijan Udyogshala at Kingsway Camp for the last 30 years. The Lt. Governor had decided to take over the staff Along with the equipments and machinery of the Harijan Udyogshala for running ITI 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 has been appointed in the Directorate, but there are five cooks whose particulars are given below, who were working in the hostel attached with the erstwhile Harijan Udyogshala and it was decided by the Lt. Governor that they may also be given some alternate jobs, if not, in the Directorate, in some other institutions under the Administration. Since there might be some posts of cooks vacant in the hospitals under the Administration, it is requested that the 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 be given up to the extent of the period spent by them under the employment of Harijan Sewak Sangh at Harijan Udyogshala , Kingsway Camp because similar relaxation to other employees has been accorded by the Lt. Governor.If appointed, these cooks will be required to undergo medical examination and character verification by police will also have to be done before appoint-ment. Their appointments will also be considered as fresh appointment in Government Service Yours 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 time was Director, Department of Training and Technical Education. This letter mentions about the absorption of staff working at Harijan Udyogshala, Kingsway Camp and for counting their past service. It is, therefore, contended that the petitioner stood transferred on take over in the employment of the respondents along with the other members of the staff of Harijan Udyogshala from the date the said 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 taken prior to that date.
(6) The petitioner contends in the writ petition that he became the employee of respondents 1 to 3 with effect from 4/11/1977, on the same terms andconditions, emoluments as well as continuity of service and respondents are liable to 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 the petitioner was the Medical Officer was also taken over, as it was part and parcel of the Harijan Udyogshala. The petitioner continued to be in the employment of the respondents and as he was not issued any letter of absorption, he made several representations to the respondents from 4/11/1977, to give him duty and pay and allowances of his post since the date of take over. Reference may be made to the letter of Shri V.P. Suri, Joint Director, Directorate of Training and Technical Education to the Municipal Commissioner of Delhi for absorption of the petitioner.This communication may be reproduced as under: "V.P.SURIJOINTDIRECtor Directorate of Training& Technical Education Rouse 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 Kingsway Camp.Sir,I am directed to say that this Administration has started I.T.I. Nand Nagri in the premises of erstwhile Harijan Udyogshala being run by all India Harijan Sewak Sangh. The Lt. Governor, Delhi has been pleased to order that all the surplus staff may be absorbed in the vacant posts in the Administration for which they are qualified. He has given relaxation of age and also relaxation for sponsoring of candidates from Employment Exchange. Out of 29 employees, 12 have already been absorbed in this Directorate while the names of others have been sent to various departments of the Administration.Dr. Chander Singh, who was Medical Officer of Harijan Udyogshala is a registered Medical Practitioner in Ayurvedic and since there is a no Ayurvedic 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 the request 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 report may 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, is Annexure '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' &'G' to the writ petition). The petitioner felt aggrieved as he did not receive any communication from the respondents nor he was absorbed and given any charge and duty and he was left with no option but to approach this Court by the present petition under Article 226 of the Constitution of India.
(7) Rule was issued in the writ petition as far back as 14/05/1979 and despite repeated opportunities no reply has been filed. The respondents have only cared to file a short reply when the petitioner filed an application being C.M. No. 580/91 for early hearing of the writ petition. The take over of the Institution by Delhi Administration in the year 1977 is admitted. The relevant paragraph may be cited as follows: "PURPOSE of the institution was to make the children belonging to Sc category to 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 Council for Training in Vocational Trades (NCTVT) which is working under All India National Industrial Training Scheme. The said Institution was taken over by Delhi 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 consultation with the representative of the Secretary of the erstwhile Harijan Sewak Sangh that only those employees would be absorbed in the new posts who will fulfill the requisite educational and technical qualifications. The Medical certificates would be necessary for all of them". The point regarding absorption of petitioner inGovernment service was also considered and it was stated that there was no post of Vaid and in view of this, the matter was referred to Municipal Corporation of Delhi for his absorption, but they were reluctant to absorb him on the post of Vaidor Compounder as he did not fulfill the requisite qualifications for the said post, as per the Recruitment Regulations prevailing at that time. The relevant portion of the communication dated 24/11/1978, to the petitioner reads as follows: "MEMORANDUM with reference to his representation dated 24/10/1978 sent by Shri Chander Singh Garhdeshi to the Director of Training & Technical Education,he is informed that his case has been thoroughly examined a number of times and he was informed of the position vide this Directorate's letter of even number 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 Delhi Administration because he does not fulfill required qualifications as laid down for the post of Pharmacist."
(8) The learned Counsel for the petitioner has vehemently argued that the petitioner was Medical in charge of the Dispensary, which was being run at HarijanUdyogshala Kingsway Camp and, therefore, there was no question of his being deprived of the job after absorption, when he had already put in more than 22 years of service as member of the staff of Harijan Udyogshala till the date of take over in the year 1977. He had continued to work since 1955. The name of the petitioner appeared on the attendance register and he was paid salary by the said Udyogshala from the funds of the Udyogshala. The staff of the said Institution was to be taken into employment in the Government service and the said staff was to be given all the benefits of its service, rendered in Udyogshala such as continuity of service, super annuity and other benefits. The respondents have made a false submission that the petitioner was not qualified, as he was Medical Officer in charge of thedispensary, as stated above, and in this context he could not be deprived of that status on false and flimsy grounds. The other staff of the Udyogshala was absorbed and the petitioner has been treated in arbitrary and discriminatory manner, which violates the provisions of Article 14 of the Constitution.
(9) Lastly, it is contended that the respondents appointed someone else in the Ayurvedic Dispensary, which was taken over by them and thus deprived the petitioner of his job and emoluments. The Dispensary where petitioner was based prior to the take over continued to function and the services of the petitioner could have been utilised in the same Dispensary and it is wrong on the part of the respondents 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 and despite 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 the petitioner into consideration and find great force in them. The petitioner was working as a Medical Officer of the Ayurvedic Dispensary and he was duly qualified in his profession. The Administration adopted a careless and callous attitude not to provide even any alternative job to the petitioner. They could have continued him in the same Dispensary where he was working as Medical Officer and 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 of Section 17(3) Sub-clauses (a), (c) and (d) of the Indian Medicine Central CouncilAct, 1970, to indicate that the petitioner possessed the requisite qualifications and he 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 filed by the respondents nor anyone has canvassed this proposition on their behalf that the petitioner was not qualified and in case he was not qualified there was no necessity on the part of the Delhi Administration to remove him from the Dispensary, which he was already running as Medical Officer in charge and to post someone else in his place. There has been no serious attempt to rehabilitate the petitioner who suddenly became disqualified to hold the job, which he was manning for years. This action itself is arbitrary and irrational.
(13) The respondents have, therefore, illegally taken away the right of the petitioner to work contrary to the conditions of take-over and, therefore, deprived the petitioner of his earnings during all this long period. The impugned action is consequently held as invalid and illegal. The petitioner has already reached the age of superannuation and the question of relief will now arise in terms of monetarycompensation. It has been fairly conceded by the learned Counsel for the petitioner that the petitioner being a qualified Vaid and an Ayurvedic Expert has often done some 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 of unemployment and misery which was thrust upon him by the respondents and by the action of take over which actually cost the petitioner his job. The respondents have failed to fulfill its obligations which arose as a result of take-over and their attitude has been careless, callous and arbitrary. The same needs to be condemned. .In case, the petitioner was absorbed he would have ordinarily continued to work and 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 gainfully employed during this enforced idleness and in this context I would refer to the following passage from the judgment of the Supreme Court in M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of Mis. Hindustan Tin Works Pvt. Ltd. andOthers, , which reads as under: "IT is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or 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 which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is question as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive 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 time and energy consuming litigation during which the period the workman just sustains himself, ultimately he is to be told that though he will be reinstated he will be denied the back wages which would be due to him the workman would 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 he was gainfully employed during the enforced idleness. That is the normal rule.Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice.In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles, 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation,to wit, the Up Industrial Disputes Act, 1947, the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away there from. On top of it they were forced to litigation up to the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned theirwages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away there from on account of invalid act of the employer, there is no justification 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 when the take over of Harijan Udyogshala took place, till the date of his superannuation.He will also be entitled to Gratuity, Pension and all super annuity benefits to which he will be entitled in accordance with the Rules and as permissible in law. The payments and other benefits, which shall now accrue to the petitioner, shall be paid within 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.