Delhi District Court
Saroj vs Municipal Corporation Of Delhi on 22 November, 2024
IN THE COURT OF SH. ARUN KUMAR GARG
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No. DLCT13-000338-2014
Ref. No. F.24(35)/E/Lab./2013/514 Dated 30.01.2014
LIR No. 516/2016 (Old No. 56/2014)
Smt. Saroj, W/o Sh. Titu,
R/o H.No. B-122, Jagat Puri, Delhi. ..... Workwoman
VERSUS
M/s. Commissioner
Municipal Corporation of Delhi (MCD),
Gandhi Mela Ground, Town Hall,
New Delhi-110006. ..... Management
Date of Institution of the case : 24.02.2014
Date on which Award is passed : 22.11.2024
AWARD
1. By this Award, I will dispose off the reference dated
30.01.2014, received from the office of Deputy Labour
Commissioner, District North-East, Govt. of NCT of Delhi U/s
10(1)(C) & 12(5) of Industrial Disputes Act, 1947 vide order no.
F.24(35)/E/Lab./2013/514 Dated 30.01.2014, whereby, the
following issue has been referred to this Court for adjudication:-
"Whether demand of workwoman Smt. Saroj w/o Sh.
Titu for reinstate with the continuity of service, back
wages, with all consequential benefit is legal and or
justified and if so, to what relief is she entitled and
what directions are necessary in this respect?"
2. The aforesaid reference has been received by this Court on
24.02.2014, whereafter, the statement of claim was filed by the
workman on the same day. Brief case of the workman as per the
statement of claim is that she was working as a Badli worker
LIR No.516/2016
Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 1 of 36
(Awazidar) with the MCD, Shahdara (South), Delhi during
12.05.1993 to 30.10.1996 and during 01.11.1996 to 04.05.2007
as a daily wager until she was appointed as a permanent worker
in the MCD. It is further her case that she was offered a
permanent employment by the management vide order no. 2217
dated 01.02.2007 and she had accordingly undergone her
physical medical test on 06.02.2007, wherein, she was declared
medically fit vide a certificate of fitness dated 06.02.2007 issued
by the concerned Medical Officer In-charge.
3. It is further the case of the claimant that she was
regularized/appointed as a Safai Karamchari by the management
w.e.f. 04.05.2007, however, suddenly a letter dated 17.02.2010
was issued by the management stating that the regularization of
several Substitute Safai Karamcharies of Shahdara (South) Zone,
including the claimant, was bogus and was not issued by the
DEMS/HQs. She has alleged that she had been in the
employment of management as a Badli Worker w.e.f. 12.05.1993
to 04.05.2007 and was thereafter taken on regular employment
w.e.f. 04.05.2007 and had been receiving her salary by way of
direct transfer in her bank account with Punjab National Bank.
She has further alleged that she had been working on all the days
of the month without availing any weekly off or national/festival
holidays and had completed continuous service of more than 240
days in each calender year of her employment.
4. Under the aforesaid circumstances, according to her,
termination of her services by the Assistant Commissioner w.e.f.
19.02.2010 was arbitrary, illegal, unjustifiable and without
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 2 of 36
following the due process of law. It is further her case that vide
order dated 17.02.2010, the Assistant Commissioner has
cancelled the regularization order of the claimant with immediate
effect, however, she was also not offered the previous status of
her employment and has been terminated from her services
without any letter of termination.
5. It is further the case of claimant that she was not issued any
charge-sheet nor any explanation was called from her in writing
and even no domestic inquiry was conducted against her by the
management before termination of her services. She alleges that
she had been regularly visiting her workplace to seek
employment but the officials present in the management did not
allot any work to the claimant on one pretext or the other leading
to issuance of demand notice dated 09.08.2011 by her to the
management. Despite service thereof upon the management,
according to her, the management has neither responded to the
same nor reinstated her into the services.
6. Moreover, despite her letter dated 31.07.2013 to the ACP,
EOW, Delhi seeking status of the inquiry, if any, held into the
alleged irregularities into regularization of the workman,
according to her, she has not received any status report even from
the police. She has thus prayed for her reinstatement in the
employment of management with effect from the date of her
termination i.e. w.e.f. 19.02.2010 with continuity of service, full
back wages and other consequential benefits.
7. Management appeared in response to notice of the statement
of claim and has filed its written statement on 19.09.2014,
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 3 of 36
wherein, the management has taken several preliminary
objections to the maintainability of the present claim before this
Court. One of the objections of the Managment to the
maintainability of the aforesaid claim is that no demand notice
was served by the claimant upon the management prior to filing
of the present claim. It is further alleged by the management that
the claim of the workman is also not maintainable for lack of
proper espousal of the case of the workman by the union duly
recognized by the management. The management has also taken
a plea that the present claim is not maintainable as the claimant
has not completed her services with the management for a
continuous period of 240 days in a calender year.
8. On merits, it is submitted by the management, in its written
statement, that initially the claimant was engaged by the
management as a Substitute Daily Wager Safai Karamchari in the
year 1993. However, she is absconding from the work as a
Substitute Safai Karamchari after submission of forged/bogus
documents/information such as the fake order no.
5031/DC/DEMS/DA-V dated 04.05.2007, besides, other
documents. Upon preliminary inquiry by the management,
according to management, it was found that the claimant, along
with other employees, had submitted fake documents with the
management with ulterior motive and the matter was accordingly
referred to EOW, Crime Branch, Delhi Police where the inquiry
against the claimant is pending.
9. It is further the case of management that it has thereafter
issued the letter dated 17.02.2010 cancelling/rejecting the
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 4 of 36
regularization of the claimant and eight other persons who had
submitted forged/fake documents/information for getting
themselves regularized. It is further the case of management that
the claimant along with eight other persons were however
allowed to remain on the status of substitute workers, however,
the claimant has been absconding from the work despite the
office order dated 19.04.2010.
10. The management has also alleged that the fitness certificate
relied upon by the workman is also a forged and fabricated
document. The management has denied having issued any
termination order in respect of the workman and has taken a plea
that the order dated 19.02.2010 is only qua cancellation of
regularization of the claimant, besides, eight other workers and
the claimant has falsely alleged that she was not even offered the
previous status of her employment with the management as a
Substitute Safai Karamchari. The management has thus prayed
for dismissal of the claim of the workman on the ground that the
workman has never been terminated by the management.
11. Thereafter, on the basis of pleadings of the parties,
following issues were settled by Ld. Predecessor of this Court
vide order dated 27.10.2014:-
(i) As per terms of reference i.e. "Whether demand of
workwoman Smt. Saroj w/o Sh. Titu for reinstate with
the continuity of service, back wages, with all
consequential benefit is legal and or justified and if so,
to what relief is she entitled and what directions are
necessary in this respect?"
(ii) Relief.
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 5 of 36
12. Rejoinder to the written statement of the management was
thereafter filed by the workman on 15.01.2015, wherein, she has
once again reiterated the averments made by her in her statement
of claim and has denied the contrary averments made by the
management in its written statement.
13. Workman has thereafter examined herself as WW-1 i.e. as
the sole witness in support of her case and has tendered her
evidence by way of affidavit Ex. WW1/A and her further
examination was deferred at the request of Ld. AR for workman
for production of original documents which were to be tendered
in evidence. However, instead of production of the original
documents, the workman moved an application initially for
summoning of record from the Investigating Officer of the case
registered with EOW and later on, moved another application
seeking permission to lead secondary evidence of the
photocopies produced by the IO of the aforesaid case.
14. The aforesaid application was disposed off by Ld.
Predecessor of this Court vide order dated 04.07.2017 subject to
the condition that the secondary evidence should be admissible as
per law, particularly, in view of the fact that most of the
documents relied upon by the workman were not even legible.
The workman has thereafter further examined herself on
21.01.2019 and tendered another affidavit Ex.WW1/A1 in her
evidence along with following documents:
(i) Ex.WW1/1: Photocopy of office order no. 560.
(ii) Ex.WW1/2: Photocopy of office order dated
01.02.2007 which is an offer letter for appointment of
the claimant as a Safai Karamchari.
(iii) Ex.WW1/3: Photocopy of office order no. 2480
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 6 of 36
requiring the workman to present herself for her
medical examination.
(iv) Ex.WW1/4: Photocopy of medical certificate dated
06.02.2007.
(v) Ex.WW1/5: Photocopy of order dated 04.05.2007
qua appointment of the workman as a regular employee
of the management.
(vi) Ex.WW1/6: Copy of office order dated 14.05.2007
regarding appointment of the workman as a regular
Safai Karamchari in Ward No. 78, Shahdara (South)
Zone.
15. WW-1 was duly cross-examined by Ld. AR for
management. No other witness was examined on behalf of the
workman despite repeated opportunities and eventually, on a
separate statement of workman, workman's evidence was closed
vide order dated 02.08.2019.
16. Management has thereafter examined the Administrative
Officer, Shahdara (South) Zone, MCD namely Sh. Dheeraj
Kumar as MW-1 i.e. as the sole witness in support of its case,
who has tendered his evidence by way of affidavit Ex. MW1/A
along with copy of order dated 07.07.2010 addressed to DCP,
Crime Branch Mark-MW1/1 and copy of seizure memo dated
02.07.2012 Mark-MW1/2. MW-1 was duly cross-examined by
Ld. AR for workman. Thereafter, on the submissions of Ld. AR
for management, management's evidence was closed vide order
dated 20.01.2023 and the matter was adjourned for final
arguments.
17. Final arguments were thereafter heard on behalf of both the
parties after legible copies of only some of the documents, relied
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 7 of 36
upon by the workman, were placed on record by the workman.
Besides, written arguments have also been filed on behalf of the
workman.
18. It is submitted by Ld. AR for workman that the workman
has been able to prove her case by way of her un-controverted
testimony in the form of affidavits Ex.WW1/A and Ex.WW1/A1,
which is duly corroborated by the documents relied upon by her
in her evidence. He submits that from the stand taken by the
management in its written statement as well as during cross-
examination of WW-1, it is apparent that the management has
alleged self-abandonment of her services by the workman,
however, despite onus to prove the aforesaid fact being upon the
management, the management has failed to lead any evidence in
this regard.
19. He submits that MW-1, during his cross-examination has
admitted that before termination of services of the claimant, the
management did not issue any charge-sheet or show cause notice,
nor, the management conducted any domestic inquiry or called
for an explanation in writing from the workman. He submits that
admittedly no action has been taken by the management against
the alleged erring officials till date which goes on to prove that
the termination of the claimant by the management was malafide
and illegal.
20. It is further submitted by him that the workman has been
able to prove completion of 240 days of continuous service with
the management by production of her bank pass-book, wherein,
her salary was being regularly credited by the management. Even
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 8 of 36
the oral testimony of workman in this regard, according to him,
has remained un-controverted. It is further submitted by him that
the application of the workman to lead secondary evidence was
allowed by Ld. Predecessor of this Court vide order dated
04.07.2017 and hence, the workman has been able to prove not
only her regularization order but also her termination order by the
production of photocopies thereof.
21. Under the aforesaid circumstances, according to him, the
workman is entitled to her reinstatement into the services with
full back wages, continuity of service and all other consequential
benefits.
22. On the other hand, it is submitted by Ld. AR of management
that the services of the workman were never terminated by the
management. Rather, according to him, the management has
merely canceled the alleged regularization order of the claimant,
along with eight other workers, on the ground that the same was
forged and fabricated by the workman along with eight other
workers. He submits that the claim of the workman is also liable
to be dismissed on the ground that she has failed to prove service
of any demand notice upon the management seeking her
reinstatement into the services prior to filing of the present
statement of claim.
23. It is further submitted by Ld. AR for management that the
workman has also failed to prove that she had worked with the
management for a continuous period of 240 days within the year
immediately preceding the date of her alleged termination. He
submits that the non-service of demand notice by the workman
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 9 of 36
upon the management prior to filing of the statement of claim
clearly indicates that she has herself abandoned the services of
management as a Substitute Safai Karamchari after cancellation
of her regularization order. He has thus prayed for dismissal of
the claim of the workman.
24. I have heard the submissions made on behalf of the parties
and have carefully perused the material available on the record in
the light of submissions made by Ld. ARs for both the parties.
My issue wise findings on the issues, settled by this Court vide
order dated 27.10.2014, are as follow:-
Issue no. (i): As per terms of reference,"Whether
demand of workwoman Smt. Saroj w/o Sh. Titu for
reinstate with the continuity of service, back
wages, with all consequential benefit is legal and
or justified and if so, to what relief is she entitled
and what directions are necessary in this respect?"
25. Onus to prove the aforesaid issue was upon the workman. It
is significant to note in this regard that the workman in the
present case is seeking relief of reinstatement into the services of
the management with full back wages and continuity of service,
while, alleging illegal termination of her services by the
management w.e.f. 19.02.2010 and that she is unemployed since
the date of termination of her services by the management. On
the other hand, the management has denied that it has ever
terminated the services of the workman at any point of time. The
plea taken by the management is that upon cancellation/ rejection
of the regularization order dated 04.05.2007 by the management,
vide order dated 17.02.2010 on the ground that the regularization
order dated 04.05.2007 in the name of the workman was bogus
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 10 of 36
and was never issued by DMES HQs, the workman has
absconded and stopped reporting on duty even as substitute Safai
Karamchari.
26. In order to prove the averments made by the workman in her
statement of claim, the workman has examined herself as WW-1
i.e. as the sole witness in support of her case and tendered her
evidence by way of affidavits Ex. WW1/A and Ex. WW1/A1,
which were almost verbatim reproduction of each other except
that in the affidavit Ex. WW1/A1, the documents, relied upon by
the workman, are also mentioned, which were not referred to in
her previous affidavit Ex. WW1/A. She was duly cross-examined
by Ld. AR for management and during her cross-examination has
denied the knowledge of contents of her affidavit.
27. She has admitted that the Police had called her for
investigation of the case pertaining to FIR no. 145/2011 PS EOW
and that she had received the letter dated 17.02.2010 from the
management after discovery of alleged forgery. Though, she has
denied the suggestion to the effect that she had never been
terminated by the management from her services as Awazidar/
substitute Safai Karamchari and that she had voluntarily stopped
reporting on her duty since the date she had acquired knowledge
about the alleged forgery, however, she has admitted that she had
not sent any demand notice seeking her reinstatement into the
services of the management.
28. The workman, in her evidence, has failed to produce any
document, whereby, her services were terminated by the
management. Though, she has taken a plea in her statement of
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 11 of 36
claim as well as evidence by way of affidavit that her services
were terminated by the management w.e.f. 19.02.2010, vide
Office Order dated 17.02.2010, however, she has failed to tender
the copy of the aforesaid order in her evidence. The management,
during cross-examination of WW-1, has however confronted the
workman with the aforesaid letter Ex. WW1/M1 and the
workman had admitted the receipt thereof from the management.
29. A bare perusal of the office order dated 17.02.2010 shows
that the aforesaid order can not be considered to be an order of
termination of services of the workman by the management. In
fact, vide order dated 17.02.2010, the management has merely
cancelled the office order dated 04.05.2007, which is alleged by
the workman to be the order of regularization of her services,
with immediate effect on the ground that the same is bogus and
was never issued by DEMS/HQs. Vide order dated 17.02.2010,
after cancellation of the alleged bogus order dated 04.05.2007, it
was further ordered that the workman shall not be working as a
regular safai karamchari in MCD which indicates that her status
was reverted back to that of Substitute Safai Karamchari
(Awazidar).
30. Though, it has been alleged by the workman, in her
statement of claim that the management has even failed to permit
her to work as substitute safai karamchari after cancellation of
her regularization order dated 04.05.2007, however, she has
failed to produce any document to prove that she was not allowed
by the management to work even as Substitute Safai
Karamchari/ Awazidar w.e.f. 19.02.2010. In fact, she has failed
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 12 of 36
to lead any evidence to the aforesaid effect otherwise than by
way of her bald statement in this regard.
31. On the other hand, the management has taken a plea that the
workman herself has absconded from her duties as Substitute
Safai Karamchari/ Awazidar after acquiring knowledge about the
alleged forgery. It is sought to be contended by Ld. AR for
workman that the only defence which can be deduced from the
written statement of the management is that the workman herself
has abandoned her services with the management, however, the
management has failed to lead any evidence to the aforesaid
effect since, admittedly, neither any show cause notice was ever
issued by the management to the workman directing her to
resume her duties nor any inquiry into the misconduct of the
workman was conducted by the Management.
32. No doubt, the management has failed to produce any
document to prove that the management had thereafter issued any
show cause notice to the workman on account of her
unauthorized absence or that the management conducted any
inquiry into the aforesaid unauthorized absence of the workman
w.e.f. 19.02.2010, however, the aforesaid fact by itself is not
sufficient to presume illegal termination of the services of the
workman by the management w.e.f. 19.02.2010, onus to prove
which fact was upon the workman.
33. The issue as to whether an inquiry is mandatory for the
management in case of abandonment of service on the part of
workman or not has been specifically dealt with by Hon'ble
Delhi High Court in Diamond Toys Company (P) Ltd's case
LIR No.516/2016
Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 13 of 36
(Supra). Relevant observations of Hon'ble Delhi High Court in
this regard are being reproduced hereinbelow:
"6. It is commonly known that a person, who is working in
the industry keeps on trying for better jobs and better
opportunities. The moment he gets better job, he is free to
leave his previous employer. The industrial law does not
require him to pay any compensation to the employer while
leaving his job, as the industrial laws require an employer to
pay retrenchment compensation when employer wants to
terminate the workman. Thus, there are no fetters on the
workman on leaving the job while there are fetters on the
employer in terminating the service of an employee. If a
workman leaves his job all of a sudden and stops
attending the workplace of the employer, Industrial Dispute
Act does not put any obligation on the employer to call
back the workman and request him to come and join his
duties. Such a request can be made by the employer only
when employer considers that a useful workman should
not leave the job or where a workman is governed by
certain rules and regulations under State employment and
the employer is supposed to hold an enquiry under the
service rule before termination of service of an employee.
Where the workman is free to leave and join another
employer without even a notice and without obtaining a
no objection from his employer, the employer cannot be
compelled to call such a workman for joining the duties or
to conduct an enquiry into the absence of the workman
and then terminate his services. Leaving the services of an
employer by the workman is a valid mode of his
abandonment and there is no illegality attached to a
workman leaving the services of his previous employer and
joining another employer. If the employer does not
consider the abandonment of service or leaving the service
by a workman as a misconduct, the law cannot force the
employer to consider such abandonment as a misconduct
and hold an enquiry. Misconduct of an employee is the
one which an employer considers as the misconduct. An
enquiry is required to be held only where an employer
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Smt. SarojVs. Commissioner MCD
Award dated 22.11. 2024 Page 14 of 36
intends to impose punishment on the employee for an
alleged misconduct. if an employer does not intend to
impose any punishment on the employee and considers
that if the employee has left his service, let it be so, the law
cannot compel the employer to hold an enquiry and
punish an employee for the misconduct.
7. I consider that it was not necessary for the employer to
hold an enquiry into the abandonment of the service by
the respondent. It was for the respondent to prove that his
services were terminated for some reasons by the employer or without any reason by the employer. The respondent had taken a stand which was found to be false. Under these circumstances, the Labour Court's conclusion that it was a case of retrenchment is perverse." (emphasis mine)
34. A bare perusal of para 6 of the aforesaid judgment as quoted hereinabove, shows that it was categorically held by Hon'ble Delhi High Court that if a workman leaves his job all of a sudden and stopped attending the workplace of the employer, Industrial Disputes Act does not put any obligation on the employer to call back and request him to come and join his duties. Such a request, as per the aforesaid judgment, can be made by the employer only when the employer considers that a useful workman should not be leave the job or where the employer is supposed to hold an inquiry under the service rules before termination of services of an employee. It has further been held that if the employer does not consider the abandonment of services or leaving the services by workman as a misconduct, the law cannot force the employer to consider such an abandonment as a misconduct and hold any inquiry.
35. It has further been laid down in the aforesaid judgment that the misconduct of an employee is the one which an employer LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 15 of 36 considers as the misconduct and an inquiry is required to be held only where an employer intends to impose punishment on the employee for an alleged misconduct. It is further held that if an employer does not intend to impose any punishment on the employee and considers that if the employee has left his services, let it be so the law cannot compel the employer to hold an inquiry and punish an employee for the misconduct.
36. In the case in hand, the management has not passed any termination order terminating the services of the workman as an Awzidar/substitute safai karamchari and hence, in the facts and circumstances of the present case, it cannot be presumed that the management has terminated the services of the workman while considering the abandonment of services by the workman to be a misconduct. Since, the management in the present case has not passed any formal termination order thereby terminating the services of the workman on account of her alleged unauthorized absence, in my considered opinion, no inquiry was required to be conducted by the management.
37. Now the next question which arises for consideration is whether the management has been able to establish, from the material available on record, the abandonment of services by the workman. The Court is not oblivious of the law laid down by Hon'ble Suprem Court in G.T. Laad & Ors. Vs. Commercial and Fibers India Ltd. (1979) 1 SCC 590 that to constitute abandonment there must be total or complete giving up duties so as to indicate an intention not to resume the same and an inference that an employee has abandoned or relinquished his LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 16 of 36 services is not easily drawn unless from the length of absence or from other surroundings circumstances, an inference to that effect can be legitimately drawn and it can be assumed that an employee intended to abandon the service. In fact, in the aforesaid judgment, Hon'ble Supreme Court has also categorically held that whether or not there has been a voluntarily abandonment of service by a workman is a question of fact which has to be determined in the light of surrounding circumstances of each case.
38. In Chief Engineer (Construction) Vs. Keshva Rao (D) by LRs (2005) 11 SCC 229, Hon'ble Supreme Court has considered a delay of a year and five months in issuing a notice by the workman to the management seeking his reinstatement into the services, after alleged termination of his services by the management, as a circumstance indicating abandonment of service by the workman. Moreover in Water Supply & Sewage Disposal's Case(Supra), Hon'ble Delhi High Court has considered the subsequent conduct of the workman in not raising any grievance against his alleged illegal termination for nearly 7 years to be sufficient to presume abandonment of services on his part particularly when the workman had failed to lead any independent or credible evidence, except by way of his own self serving statement, before the Labour Court to establish that his services were terminated by the management.
39. It is submitted by Ld. AR for management that even in the present case the workman has failed to raise any grievance as to alleged illegal termination of her services by the management for LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 17 of 36 a considerable period, in as much as, even as per her won averments (which are not even proved by her), she had allegedly sent the first demand notice to the management seeking her reinstatement on 09.08.2011, i.e. after almost 18 months from the date of her alleged termination. He submits that the workman, during her cross-examination, has in fact admitted that she did not serve any demand notice upon the management seeking her reinstatement. The aforesaid conduct of the workman, according to him, is sufficient to presume abandonment of her services by the workman.
40. As has already been observed hereinabove, in Chief Engineer (Construction) case (supra) a delay of about a year and five months on the part of workman seeking his reinstatement with the management was considered by Hon'ble Supreme Court to be unreasonable and a relevant circumstance to presume abandonment of the services on the part of workman, whereas, in another case before Hon'ble Delhi High Court in Water Supply & Sewage Disposal case (supra), Hon'ble Delhi High Court has considered a delay of 7 years to be circumstance indicating abandonment of services on the part of workman.
41. Thus, in my considered opinion, no straight jacket formula can be laid down as to the time period during which a workman should approach the management with a request for reinstatement into his services, after his alleged termination, failing which it shall be presumed that he had abandoned the services of the management. As has already been observed hereinabove, the workman in the present case has failed to lead any independent LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 18 of 36 or credible evidence, otherwise than by way of her self serving statement, that her services were terminated by the management w.e.f. 19.02.2010 since she was not even allowed to work as Awazidar/substitute safai karamchari after recall of her order of regularization. Though, in her statement of claim as well as evidence by way of affidavit she had allegedly sent a demand notice to the management on 09.08.2011, however, during her cross-examination, she has admitted that she did not send any demand notice to the management seeking her reinstatement before filing of the present claim, which has been filed on 24.02.2014 i.e. after expiry of more than 04 years from the date of her alleged termination. Be that as it may, even if it is assumed for sake of the arguments that any demand notice was ever served by the workman upon the management, even as per the own case of the workman, the same was first sent by the workman to the management on 09.08.2011 i.e. after expiry of 18 months from the date of her alleged termination.
42. Though, the workman, in her statement of claim has alleged that she had filed her first statement of claim before Ld. PO LC- XIX, Karkardooma Courts in terms of Section 10(4) of the Industrial Disputes Act, 1947 on 22.09.2011, which was dismissed vide order dated 11.07.2013 with a liberty to the workman to file a fresh statement of claim before the Conciliation Officer, however, the workman has failed to prove the aforesaid fact. It is significant to note in this ergard that neither the alleged first statement of claim of the workman nor the order dated 11.07.2013 passed in the said case has been produced by the workman before this Court. Even if, the LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 19 of 36 aforesaid plea of workman is assumed to be correct, it merely shows that even the first claim was filed by the workman qua alleged illegal termination of her services after expiry of more than 18 months. The workman has also failed to place on record the copy of statement of claim filed by her before Conciliation Officer nor has she summoned any witness from Labour Department to produce the record of any such claim.
43. Had the services of the workman being terminated by the management w.e.f. 19.02.2010, it is highly improbable that the workman would not have issued the demand notice seeking her reinstatement into the services of the management or that she would not have approached any Court/authority with a claim for her reinstatement for a period of almost 18 months, particularly when she was allegedly unemployed and was at the verge of starvation. The aforesaid conduct of the workman thus probablises the defence of the management that the management has never terminated the services of the workman and rather it was the workman who had been unauthorizedly absenting herself from her duties as substitute safai karamchari w.e.f. 19.02.2010.
44. As has already been observed hereinabove, the workman has failed to examine any other witness nor has she produced any document to prove termination of her services as substitute safai karamchari by the management w.e.f. 19.02.2010 and considering the contradictions in her case, whereby, though, in her statement of claim as well as evidence by way of affidavit she had alleged service of demand notice dated 09.08.2011 upon the management, however, during her cross-examination, she has LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 20 of 36 admitted having never served management with any demand notice for the reinstatement into the services of the management, in my considered opinion, the sole testimony of the workman cannot be accepted by the Court as a proof of illegal termination of her services by the management without any independent collaboration.
45. In view of the aforesaid discussion, in my considered opinion, the workman has failed to prove the illegal termination of her services by the management. She is thus not entitled to her reinstatement into the services of the management with or without full back wages and continuity of service.
46. There is another reason for denial of the aforesaid relief to the workman i.e. that the workman has failed to raise any dispute with the management prior to filing of the present claim by serving a demand notice upon the management seeking her reinstatement into the services of management, which was a pre- condition for exercise of jurisdiction by the appropriate government for reference of the aforesaid dispute to this Court and for assumption of jurisdiction by this Court to adjudicate the said reference. While taking the aforesaid view, I derive support from the following observations of Hon'ble Delhi High Court in Nagendra Sharma Vs. Management of M/s Rajasthan Timber Corporation ILR (2006) I Delhi 1030:
"23. In Sindhu Resettlement Corporation Limited v. Industrial Tribunal of Gujarat, AIR 1968 SC 529, an employee was transferred to the subsidiary company by his principal employer with his consent. He received retrenchment compensation from his new employer. The services of the workman were terminated by the subsidiary LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 21 of 36 company. He claimed a lien on his post with the principal company and when informed that the post which he occupied stood filled up, the employee sought retrenchment compensation from the principal company. This was not paid by the principal company. In these circumstances, a reference of the industrial dispute was sought by him whereupon the appropriate government made a reference relating to reinstatement of the employee into service with the principal company.
The Apex Court was of the view that if no dispute at all is raised by the employees with the management, any request sent by them to the Government would be in the nature of a demand by them and would not be an industrial dispute between them and their employer. An industrial dispute, as statutorily defined under Section 2(k) is of the Industrial Disputes Act, 1947, must be a dispute between employers and employers, employers and workmen and workmen and workmen. The Government is required to come to an opinion that an industrial dispute does exist and that an opinion can only be formed on the basis that there was a dispute between the employee and the employer. Thus, when the retrenched employee and the union had conveyed a demand to the management only for retrenchment compensation, and did not make any demand for reinstatement, it was held by the Apex Court that the reference made by the Government under Section 10 in respect of the reinstatement is not competent and that the only reference which the Government could have made had to be related to payment of retrenchment compensation.
24. Noticing the facts of the case before it, the Supreme Court had observed that when the conciliation officer reported to the Government that an industrial dispute did exist, the appropriate government had to be satisfied on the material before it that such dispute had been raised by the respondent with the management. In this behalf, the court observed thus:
"If no dispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and not an industrial dispute between them and their employer. An industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 22 of 36 workmen with their employer, cannot become an industrial dispute. Consequently, the material before the Tribunal clearly showed that no such industrial dispute, as was purported to be referred by the State Government to the tribunal, had ever existed between the appellant Corporation and the respondents and the State Government, in making a reference, obviously committed an error in basing its opinion on material which was not relevant to the formation of opinion. The Government had to come to an opinion that an industrial dispute did exist and that opinion could only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material could not possibly exist when, as early as March and July, 1958, respondent No. 3 and respondent No. 2 respectively had confined their demands to the management to retrenchment compensation only and did not make any demand for reinstatement. On these facts, it is clear that the reference made by the Government was not competent. The only reference that the Government could have made had to be related to payment of retrenchment compensation which was the only subjectmatter of dispute between the appellant and the respondents."
25. A similar point came for consideration of two Judge Bench of the Apex Court in (1978) 2 SCC 353 : AIR 1978 SC 1088 entitled Shambhu Nath Goyal v. Bank of Baroda. In this case, the petitioner workman was an employee of the Bank of Baroda. After service of a charge-sheet and conduct of inquiry, he was dismissed from service. Admittedly, the workman appealed against the order of dismissal but was unsuccessful. An industrial dispute arising out of the dismissal of the workman was espoused by the Punjab Bank Workers Union. Upon failure of the conciliation proceedings, the Government of India made a reference in the following terms:
"Whether the action of the management of Bank of Baroda in dismissing Shri Shambhu Nath Goyal, Clerk, Civil Lines Branch, was justified? If not, to what relief is he entitled?"
The respondent bank raised a preliminary objection that no demand in respect of Shri Shambhu Nath Goyal was made on the management and that therefore there was no industrial dispute in existence. It was urged that for this LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 23 of 36 reason, the reference under the Industrial Disputes Act, 1947, was incompetent.
The industrial tribunal held in favour of the respondent/bank on this petition. However, the Apex Court in this behalf noticed thus:
"xxxxxxxxx
8. In this case the Tribunal completely misdirected itself when it observed that no demand was made by the workman claiming reinstatement after dismissal. When the inquiry was held, it is an admitted position, that the workman appeared and claimed reinstatement. After his dismissal he preferred an appeal to the appellate forum and contended that the order of dismissal was wrong, unsupported by evidence and in any event he should be reinstated in service. If that was not a demand for reinstatement addressed to employer what else would it convey? That appeal itself is a representation questioning the decision of the Management dismissing the workman from service and praying for reinstatement. There is thus unimpeachable evidence that the concerned workman persistently demanded reinstatement. If in this background the Government came to the conclusion hat there exists a dispute concerning workman S.N. Goyal and it was an industrial dispute because there was demand for reinstatement and a reference was made, such reference could hardly be rejected on the ground that there was no demand and the industrial dispute did not come into existence. Therefore, the Tribunal was in error in rejecting the reference on the ground that the reference was incompetent. Accordingly this appeal is allowed and the A ward of the Tribunal is set aside and the matter is remitted to Tribunal for disposal according to law. The respondent shall pay cost of the appellant in this Court. As the reference is very old the Tribunal should dispose it of an expeditiously as possible."
26. So far as the question of raising a demand upon the management is concerned, the court held thus:
"xxxxxxxxxxxx
5. A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the dispute or difference is connected with the employment or non-LIR No.516/2016
Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 24 of 36 employment or the terms of employment or with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine qua non, unless of course in the case of public utility service, because Section 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are 'dispute' or 'difference'. What is the connotation of these two words? In Beetham v. Trinidad Cement Ltd. Lord Denning while examining the definition of expression 'Trade dispute' in Section 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:
By definition a 'trade dispute' exists whenever a 'difference' exists; and a difference can exist long before the parties locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparing for an opening.
6. Thus the term 'industrial dispute' connotes a real and substantial difference having some element of persistency and continuity till resolved and likely if not adjusted to endanger the industrial peace of the undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or nonemployment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tantamount to re-writing the section."
27. Thereafter, the court held that in the light of the pronouncement of the Apex Court reported in AIR 1958 SC 53 entitled Madras State v. C.P. Sarthi, while making a reference under Section 10(1) of the Industrial Disputes Act, 1947, the Government is performing an administrative act which is based on an opinion as to the factual existence of an industrial dispute. So far as the order is concerned, so long there is some material which would enable the government to form an opinion, it is not open for the industrial tribunal to examine the same.
LIR No.516/2016Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 25 of 36
28. The court distinguished the judgment rendered by the Apex Court in Sindhu Resettlement Corporation Limited (Supra) holding that the question raised before the Apex Court in the Sindhu Resettlement Corporation case (Supra) was as to whether there was an industrial dispute in existence on the date of the reference and not a question as to whether in the case of an apprehended dispute, the government can make a reference or not. In this behalf, the court held thus:
"The Tribunal, however, referred to the decision of this Court in Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal, (1968) 1 Lab LJ 834 : (AIR 1968 SC 529) in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference, but the question whether in case of an apprehended dispute Government can make reference under S. 10(1) was not examined.
xxxxxxxxx
29. The Apex Court distinguished the decision of this court in Sindhu Resettlement Corporation on facts and held thus:
"We further consider whether the notification dated 1212-1968 could be construed to be one under Section 7 assuming that the mention of Section 8 therein was wrong. A notification under Section 7 would have to be for the constitution of another Labour Court, inasmuch as the Labour Court presided over by Shri Baweja still continued. This notification dated 12-12-1968 does not constitute a new Labour Court presided over by Shri Desh Deepak and cannot, therefore, be upheld under Section 7 also."
30. It is, therefore, apparent that the Apex Court decided the facts of the case before it which were at variance with the facts and issues raised in the Sindhu Settlement Corporation Case (Supra).
31. The same issue had arisen for consideration before a Division Bench of this court in Fedders Lloyd Corporation (Pvt.) Limited v. Lt. Governor, Delhi reported at AIR 1979 Delhi 60.
32. In this case, the respondent No. 3 Ajayab Singh was an employee of M/s Fedders Lloyd Corporation Pvt. Limited and had expressed his inability to work and resigned. Based on this reason, he was relieved of his duty on 4th July, 1967. He accepted the ex gratia payment made by the petitioner LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 26 of 36 which was paid on the basis of workers which retrenched from service. The workman received payment in full and final settlement of all claims and even requested for certificate which was issued by the petitioner. The workman, thereafter, did not make any demand on the petitioner company directly but wrote the letter to the labour commissioner stating that an industrial dispute exists between him and petitioner company and sought a reference. In the enclosed statement, the respondent No. 3 alleged that his services were terminated by way of retrenchment and that this retrenchment should be set aside and respondent No. 3 should be reinstated into service.
33. The petitioner company alleged that it learnt of this only when a notice was received from the conciliation officer and the petitioner resisted the claim of the respondent No. 3 on the ground that there was no industrial dispute between the parties which could be referred to adjudication. In the judgment in Fedders Lloyd Corporation Pvt. Limited case, the court held that despite facts being placed before it, the Delhi Administration made an order of reference which was assailed by the company in a writ petition before this court. The Division Bench held thus:
"11. Under Section 10(1) of the Act, the appropriate Government is empowered to make a reference if it is of the opinion that an industrial dispute either exists or is apprehended. The reference at annexure 'A' to the petition is of an existing industrial dispute. Weare not, therefore, concerned in this case with any apprehended dispute. The question is whether an industrial dispute existed before it was referred to the Labour Court. Section 2(k) of the Act defining an "industrial dispute"
refers to a dispute or difference. This means that one party asserts something, which is denied by the other or that the demand of one party is refused by the other. Preamble of the Act says that the Act makes provision for the investigation and settlement of Industrial Disputes. Chapter II of the Act constitutes certain authorities to compose any material difference of opinion or to settle industrial disputes between the employers and the employees. Such authorities include Conciliation Officers as well as the Labour Courts. In Chapter III of the Act, Section 10 deals with the reference of the disputes by the appropriate Government for settlement to the authorities under the Act and Section 10-A deals with voluntary reference of the LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 27 of 36 disputes by the parties to arbitration. Chapter IV has laid down the procedure, powers and duties of the authorities in dealing with industrial disputes. From the scheme of the Act, therefore, it is clear that an industrial dispute must exist or must be apprehended before it can be referred by the appropriate Government under Section 10(1) to the authorities mentioned therein. Section 12 which deals with the duties of the Conciliation Officer pre-supposes that an industrial dispute exists or is apprehended before the Conciliation Officer can deal with it thereunder. It does not contemplate that an Industrial dispute can arise for the first time during the proceedings before the Conciliation Officer. When the parties are unable to settle the dispute between themselves, an application is made under sub section (2) of Section 10 of the Act for reference of the dispute to an authority under the Act by the appropriate Government. The contents of such an application are to include, according to R. 3(e) of the Rules, the efforts made by the parties themselves to adjust the dispute. This would also show that a dispute must exist between the parties before an approach is made to the appropriate Government for reference of the dispute to adjudication. The application made by respondent No. 3 in the present case is at annexure 'D' of the writ petition. It begins by saying that an industrial dispute exists between the parties. But the particulars of the dispute given in accordance with the requirements of Rule 3 are significantly silent about any demand made by respondent No. 3 against the petitioner company. It does not say that any effort was made by respondent No. 3 to settle any dispute with the petitioner-company. The inference that arises is that no demand whatever was made by respondent No. 3 on the petitioner-company before he applied under Section 10(2) to the appropriate Government, for such reference of the dispute for adjudication. Respondent No. 3 has not placed any documentary evidence on the record that he made demand on the petitioner-company before making the application under Section 10(2). The referring Judge, therefore, called for the proceedings before the Conciliation Officer and found that the same application under Section 10(2) was before the Conciliation Officer. The claim of respondent No. 3 was sent by the Conciliation Officer to the management for comments, LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 28 of 36 but no comments were received in writing. The matter was, however, orally discussed and the management conveyed to the Conciliation Officer their defence on merits. As there was no possibility of settlement, the Conciliation proceedings were closed and a report was made by the Conciliation Officer to the Government. Under Section 12(5) of the Act on a consideration of this report, the Government was satisfied that there was a case for reference to the Labour Court and accordingly the reference at annexure 'A' to the petition was made.
34. The Division Bench then discussed the pronouncement of the Supreme Court in the Sindhu Resettlement Corporation Limited v. Industrial Tribunal of Gujarat(supra) and further stated thus:
13. In our anxiety to understand precisely what the Supreme Court meant I studied the whole of their decision and also the Gujarat High Court decision reported in (1965) 2 Lab LJ 268 (Guj), which was reversed by the Supreme Court. At page 271 of the report of the Gujarat High Court Judgment it is stated that respondent No. 3 had made a complaint to his Union, respondent No. 2, who thereupon presented the demand to the Corporation for the reinstatement of respondent No. 3. But the Supreme Court has held that the evidence before the Tribunal clearly showed that no such demand was made by the workmen concerned or by the Union on the Management of the Sindhu Re-settlement Corporation and I feel bound to accept this later position. The Supreme Court has held that the evidence before the Tribunal clearly showed that no such demand was made by the workmen concerned or by the Union on the Management of the Sindhu Resettlement Corporation and I feel bound to accept this later position. The Supreme Court has also clarified that even if the Conciliation Officer found that an industrial dispute existed and so reported to the Government, this could not be regarded as the existence of the industrial dispute which has to be founded upon a demand by the workmen on the employers. If this is the ratio of the Supreme Court decision, it cannot be said that an industrial dispute existed in the present case as no demand was made by respondent No. 3 on the petitioner-company before he made an application under Section 10(2) for redemand of respondent No. 3 was forwarded by the Conciliation LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 29 of 36 Officer to the petitioner-company and was not accepted by the latter would not constitute an industrial dispute.
The observation in Standard Coal Company v. S.P. Verma, AIR 1952 Pat 56, in paragraph (15), that xxxxxxxxx We are of the view that the decision of the Supreme Court in AIR 1968 SC 529 referred to above, has finally established the proposition that a demand by the workmen must be raised first on the Management and rejected by them before an industrial dispute can be said to arise and exist and that the making of such a demand to the Conciliation Officer and its communication by him to the Management, who reject the same is not sufficient to constitute an industrial dispute. The decisions and dicta of some of the High Courts to the contrary can no longer be considered good law."
35. It is noteworthy that in the Shambhu Nath Goyal case (Supra), the petitioner had agitated against his dismissal and had even filed an appeal before the bank against the same. Therefore, the court was of the view that the petitioner had been persistently demanding reinstatement from its employer and for this reason, rendered the judgment as noticed above.
36. So far as the reliance on judicial precedent is concerned, it has been repeatedly observed that court should not place reliance on decision without discussing as to how factual situation fits in the fact situation of the decision on which reliance is placed. In this behalf, I may refer to the principles laid down in the pronouncement of the Apex Court reported in JT 2002 (1) SC 482Haryana Financial Corporation v. Jagdamba Oil Mills. In this case, the court held thus:
"19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 30 of 36 do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, (1951 AC 737 at p. 761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the languages actually used by that most distinguished judge."
In Home Office v. Dorset Yacht Co., (1970 (2) All ER
294) Lord Reid said, "Lord Atkin's speech .......... is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megrry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. As if it were an Act of Parliament." And, in Herrington v. British Railways Board, ((1972) 2 WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
20. The following words of Lord Denning in the matter of applying precedents have become locus classicks:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may later the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case falls, the broad resemblance to another case is not at all decisive."LIR No.516/2016
Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 31 of 36 xxxxxxxxx "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets nd branches. My plea is to keep the path to justice clear of obstructions which could impede it."
37. In the Sindhu Resettlement Corporation case, Fedders Lloyd Corporation (Pvt.) Limited case and in the instant case, no demand or notice of any kind had been served upon the employer/management with regard to the demand of the workman. Therefore, the fact situation before the Apex Court in Shambhu Nath Goyal case was quite different from the facts which were before the court in the Sindhu Resettlement Corporation case, Fedders Lloyd case and the case in hand.
38. Judicial decorum, legal propriety and bindingness of precedents mandate that a judgment rendered by a larger bench of the Apex Court, which is prior in time, would prevail over latter judgment of the Apex Court which may have been rendered by a smaller Bench. A judgment rendered by a two bench of the Apex Court which distinguishes the earlier judgment by the larger bench on the facts of the case would, therefore, not be laying down a binding principle of law.
39. In these circumstances, I am unable to agree with Shri K.L. Gupta, learned counsel for the petitioner, that the judgment of the Apex Court in Shambhu Lal Goyal v. Bank of Baroda case supra would be binding for the purposes of adjudication of the present case. As I have already noticed, the facts which were before the Apex Court in Shambhu Nath Goyal v. Bank of Baroda are different from the case set up by the present petitioner before the industrial adjudicator.
40. In JT 1989 (3) SC 156 entitled Jayantbhai Manubhai Patel v. Arun Subodhbhai Mehta, the court held that the observations of the Apex Court in the judgments which were relied upon by the High Court did not constitute the ratio of the judgment in that case and consequently, the High Court need not have considered itself bound by the observations in the judgment of the Apex Court cited before it. In this case, the Apex Court held thus:
LIR No.516/2016Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 32 of 36 "In our view, the learned Judges of the Gujarat High Court who delivered the judgment under consideration before us need not have considered themselves bound by the aforesaid observations in Chandrakant Khaire's case, as they have done. In the first place, these observations do not constitute the ratio of the judgment in that case. The question in that case was whether a meeting which was duly convened and had commenced could have been adjourned by the Municipal Commissioner and not whether a notice convening a meeting issued by the Municipal Corporation could be cancelled by him before the commencement of the meeting with a view to have the meeting held on a subsequent date. We are of the view that the Division Bench was not really called upon to consider the situation in such a case, as we have pointed out earlier. Moreover, it appears that the Division Bench has not taken into account the provisions of section 21 of the Bombay General Clauses Act or the principles underlying that section. No argument was advanced before the Division Bench on the basis of that section at all. The attention of the Division Bench was not drawn to the judgment of this Court in Mohd. Yunus Saleem's case, might not have made the afore-stated observations at all."
41. In the judgment reported in (1989) 1 SCC 101 entitled MCD v. Gurnam Kaur, an issue was raised before the Apex Court as to whether an order passed with the consent of parties would amount to a pronouncement of law and constitute binding precedent. In this behalf, the court observed thus:
"10. It is axiomatic that when a direction or order is made by consent of the parties, the court does not adjudicate upon the rights of the parties nor does it lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 33 of 36 made by this Court in Jamna Das case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das case was made not only with the consent of the parties but there was an interplay of various factors and the court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. The court no doubt made incidental observation to the Directive Principles of State Policy enshrined in Article 38(2) of the Constitution and said:
Article 38(2) of the Constitution mandates the State to strive to minimise, amongst others, the inequalities in facilities and opportunities amongst individuals. One who tries to survive by one's own labour has to be encouraged because for want of opportunity destitution may disturb the conscience of the society. Here are persons carrying on some paltry trade in an open space in the scorching heat of Deli sun freezing cold or torrential rain. They are being denied continuance at that place under the specious lea that they constitute an obstruction to easy access to hospitals. A little more space in the access to the hospital may be welcomed but not at the cost of someone being deprived of his very source of livelihood so as to swell the rank of the fast growing unemployed. As far as possible this should be avoided which we propose to do by this short order.
This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the Metropolitan City of Delhi where public streets are overcrowded and the pavement squatters create a hazard to the vehicular traffic and cause obstruction to the pedestrians on the pavement.
11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 34 of 36 without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam which it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. Explains the concept of sub silentio at p. 153 in these words:
A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.
12. In Gerard v. Worth of Paris Ltd. (k)., the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lncaster Motor Co. (London) Ltd. v. Bremith Ltd., the court held itself not bound by its previous decision. Sir Wilfried Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 35 of 36 was decided 'without argument, without reference to the crucial words of the rule, and without any citation of authority', it was not binding and would not be followed.
Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority."
42. In view of the above, I have no manner of doubt that the facts of the instant case, which are on all fours with the fact situation before the Apex Court in Sindhu Resettlement Corporation case supra and the principles laid down therein would bind this court." (Emphasis mine)
47. Issue no. (i) is thus decided against the workman.
Issue no. (ii): Relief.
48. In view of my findings hereinabove, the workman is not entitled to any relief. The reference dated 30.01.2014 is thus answered in negative, in the following manner:
"Demand of workwoman Smt. Saroj w/o Sh. Titu for her reinstatement with continuity of service, back wages and all consequential benefits is not legal or justified and she is not entitled to any relief."
49. Ordered accordingly.
50. Requisite number of copies of this award be sent to the competent authority for publication as per rules. ARUN Digitally signed by ARUN KUMAR KUMAR GARG Date: 2024.11.22 Announced in the open Court on this 22th day of November, 2024. This award consists of 36 number of signed pages. GARG 17:03:30 +05'30' (ARUN KUMAR GARG) Presiding Officer Labour Court-III Rouse Avenue Court, New Delhi LIR No.516/2016 Smt. SarojVs. Commissioner MCD Award dated 22.11. 2024 Page 36 of 36