Delhi High Court
Municipal Corporation Of Delhi vs Sh. R.L.Chugh & Others on 8 July, 2011
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) No.939/1996
% Decided on: 8th July, 2010
Municipal Corporation of Delhi ..... Petitioner
Through: Ms. Mini Pushkarna, Advocate
versus
Sh. R.L.Chugh & Others ..... Respondents
Through: None.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
MUKTA GUPTA, J.
1. The present writ petition seeks quashing of the Award dated 22 nd December, 1994 passed in ID No.297/1990 whereby the interruption caused in the employment of the workman was held to be illegal and the Petitioner was directed to reinstate the Respondent No.2 with continuity of service and full back wages.
2. Respondent No.2 was working as a daily wager with the Petitioner and it is claimed that he abandoned his job on 20th March, 1989. Thereafter, four WP (C) 939/2006 1 of 4 letters were sent to him calling upon him to resume his duty but he neither sought medical leave nor joined the duty. It is denied that he was terminated and as per the Petitioner it was a case of abandonment of the job by not reporting for the work. Respondent No.2 in his statement of claims alleged that he was taken into employment with effect from 1 st June, 1984 as a Mali/baildar in Horticulture Department and was posted at Narela Zone of the Petitioner. He was treated as a daily wager and was lastly being paid Rs.950/- per month while his counterparts doing identical jobs were treated as regular employees. It is further claimed that his services were terminated with effect from 28th March, 1989 as he could not attend his duties from 20th March, 1989 till 27th March, 1989 on account of his sickness. According to him he resumed the duties on 28th March, 1989 but was refused work and was told that his services were terminated.
3. On a dispute being raised the following reference was made to the Tribunal vide Notification dated 8th December, 1989:-
"Whether Shri Rich Pal has abandoned his services or his services have been terminated by the management illegally and/or unjustifiably and if so, to what relief is he entitled and what relief is he entitled and what directions are necessary in this respect."
WP (C) 939/2006 2 of 4
4. The Tribunal after adducing the evidence and hearing the parties came to the conclusion that there was no abandonment of job on the part of Respondent No.2 and the automatic termination of Respondent No.2 was bad in law. Section 25F of the Industrial Disputes Act clearly lays down that if the services of a workman are terminated after 240 days of continuous work it has to be by following the law as laid down. Section 25F of I.D. Act provides as under:-
25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
* * * * *
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2*[for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government 3*[or such authority as may be specified by the appropriate Government by notification in the Official Gazette]."
5. I have heard learned counsel for the parties. After perusing the record and hearing the learned counsel I find no infirmity in the order of the Tribunal WP (C) 939/2006 3 of 4 to the extent that it holds that it was a case of illegal termination and not abandonment of service by the Respondent. The workman fell ill and could not attend his duties from 20th March, 1989 to 27th March, 1989 and in this regard he submitted his medical certificate, photocopy of which has been produced. When a person is not in a position to attend the official duties on account of illness, he cannot be said to have abandoned his job.
6. The next issue is whether the workman is entitled to reinstatement. The order of reinstatement will amount to regularization which in terms of the decision of the Supreme Court in case of Secretary, State of Karnataka v. Uma Devi and others, 2006 (4) SCC 1 is not permissible if the initial entry itself is not against any sanctioned vacancy. It was clearly held that a daily wager has no right to be regularized if the recruitment is bypassing the recruitment procedure. Thus, the option left for this Court is to award compensation for the illegal termination of Respondent No.2. In my view, it would be appropriate to award a compensation of Rs. 1 lakh to the Respondent in view of the illegal termination. Ordered Accordingly.
7. The writ petition is disposed of.
(MUKTA GUPTA)
JUDGE
JULY 08, 2010
mm
WP (C) 939/2006 4 of 4