Delhi High Court
Municipal Corporation Of Delhi vs Khacheru on 15 October, 1992
Equivalent citations: 49(1993)DLT727, 1993(25)DRJ21, (1993)ILLJ351DEL, 1992RLR524
JUDGMENT P.N. Nag, J.
(1) In this writ petition, the petitioner, Municipal Corporation of Delhi, (hereinafter referred to as the Management) has sought for a writ of certiorari seeking quashing of the impugned Award dated 15th may, 1990 passed by Shri G.P. Mittal, Presiding Officer, Labour Court No. VII. Tis hazari, Delhi holding that the respondent No. 1 (herinafter called the Workman) had not himself abandoned the employment but his services were terminated by the Management which was illegal as well as unjustified and consequently the Workman was held to be entitled to be reinstated with full back wages and continuity in service.
(2) The facts leading to the filing of this writ petition are that vide notification No. F.24(1405)/76-Lab. dated 17.1.1977, the Secretary (Labour), Delhi Administration made a reference to the Labour Court to settle the dispute between the Management and the Workman about the termination of services of the Workman. Reference was couched in the following language:- "WHETHER termination of service of Shri Khacheru is illegal and/or unjustified and if so, to what relief is he entitled and' what directions are necessary in this respect?"
(3) In his statement of claim, the Workman has alleged that he was in employment of the Management since 1.1.1970 as a daily rated monthly paid muster roll employee and his services have been illegally terminated in 1974. However, in defense, the Management has stated that the petitioner has himself abandoned the job without any information or prior permission. He worked as a muster roll employee in the year 1972 for a period of 10 days only. In the year 1974 he absented himself and did not return for duty. On the basis of the pleadings of the parties, various issues were framed by the Labour Court and one of the issues, namely. Issue No. 4 was in the following terms: "4.Whether the services of workman were terminated or he abandoned?"
(4) After holding enquiry into the matter, the Labour Court came to the following findings which are relevant for determining the point in controversy between the parties;
(I)That the Workman has not worked with the Management for 240 days in a year at the time of his alleged termination and, therefore, he would not be entitled to any relief for payment of any retrenchment compensation and for protection under Section 25 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act).
(II)That the Workman has not abandoned the employment himself but his services were in fact terminated by the Management, which was illegal and unjustified. As a matter of fact, the Workman could not attend his duty as he had fallen sick for certain period for which he has produced the medical certificate on 4.10.1974 along with fitness certificate and an application for leave. But the Management refused duty as well as medical certificate and fitness certificate were not accepted by the Management.
(III)That the persons who were juniors to the Workman are still working with the Management and some of them have already been declared to be permanent and, therefore, the termination of the Workman is in violation of Section 25G of the Industrial Disputes Act, 1947.
(5) Mr. Luthra, learned counsel for the Management, vehemently contends that the findings of the Labour Court are bad as the Workman has not put in services for a period of one year and the Workman, therefore, cannot complain for retrenchment compensation not being in consonance with Section 25F of the Act. In support of his submission he has relied upon Mohan Lal Vs. The Management of M/s. Bharat Electronics Ltd. (AIR 1981 Sc 123). He has also cited certain other authorities as well to substantiate his point The principle laid down in Mohan Lal's case (supra) has been statutorily recognised under Section 25F of the Act., It has been further laid down that both on principle and on precedent it must be held that Section 25B(2) comprehends a situation where a workman is not in employment for. a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i.e., the date of retrenchment.If he has, he would be deemed to be in continuous service for a period of one year for the purpose of Section 25-B and Chapter V-A.. No doubt on the basis of this finding of the Labour Court, the Workman cannot complain of the retrenchment compensation not being in consonance with Section 25F as he has not rendered service for 240 days within a period of 12 calendar months and cannot have protection of the aforementioned provision.
(6) However, the matter does not rest here. The finding of the Labour Court is that the Workman has not abandoned his service-rather he was sick and was not allowed to resume duty after he was declared fit. The principle as incorporated in Section 25O of the Act was not followed inasmuch as persons junior to the Workman have been retained in service and he has been illegally and unjustifiable retrenched from service.
(7) Learned counsel for the Workmen, in this context, has relied upon Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. Co. Vs. The Management of Jorehaut Tea Co. Ltd. . The Supreme Court in that case has held that the rule is that the employer shall retrench the Workman who came last, first, popularly known as last come first go'. Of course, it is not inflexible rule and extraordinary situations may justify variations. For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is one up is retrenched. There must be a valid reason for this deviation, and, obviously, the burden is on the Management to substantiate the special ground for departure from the rule.
(8) Reference may also be made to Malkhan Singh Vs. Union of India and others (1981) -II Llj 174) wherein the Division Bench of the High Court has struck down the termination of services .of an employee not only on the ground of violation of Section 25F but also for violation of Section 25G of the Act It has been laid down: "WHERE many persons engaged much after the petitioners are retained and no reasons were disclosed for departing from the principle of "last came, first go" contained in S.25G, then the section stands violated and that is another reason for holding the termination invalid in the instant case."
(9) Reference may also be made to M/s. Swadeshmitran Limited V. Their Workmen . In that case, the Supreme Court has held that the rule of last come first go' has been statutorily recognised by Section 25G. By this section a statutory obligation is imposed on the employer to follow the rote, and if he wants to depart from it, to record his reason for the said departure.
(10) In the present case, no valid and justifiable ground has been provided by the Management to demonstrate that the services of the Workmen , been correctly retrenched although he was senior. In view of Section 25G of the Act, there is no doubt the finding of the Labour Court that the Juniors have been retained in service and the Workmen being senior has been retrenched unjustifiably, is correct. The termination, therefore, is illegal.
(11) It was next contended that the Workman himself abandoned his Service and the finding of the Labour Court is bad and, therefore, no protection can be given to him under Section 25F and 25G.
(12) Similar question arose before the Rajasthan High Court in General Manager, Northern Railway V. Central Industrial Tribunal, Jaipur (1991 Lln 224). In that case also the stand taken by the Management before the Labour Court was that the Workman has abandoned the work and his services have not been terminated, but the Labour Court came to a finding that Workman did not abandon work but his services have been terminated. The Rajasthan High Court has held that such question of fact cannot be agitated before High Court. I am in entire agreement with the views expressed by the Rajasthan High Court. The finding of fact arrived by the Labour Court after holding enquiry into the matter cannot be challenged in a writ of certiorari before a High Court unless it is perverse or without any evidence.
(13) In the light of what is discussed above, the petition is dismissed with costs.