Delhi High Court
Saroj Devi & Ors vs Dcm Ltd on 20 July, 2012
Author: A.K.Sikri
Bench: Rajiv Sahai Endlaw, A.K.Sikri
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 11/2012
Judgment Delivered on: 20.7.2012
SAROJ DEVI & ORS ..... APPELLANTS
Through Mr. Vinay Sabharwal, Advocate
versus
DCM LTD ..... RESPONDENT
Through Mr. Harvinder Singh, Advocate.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K.SIKRI, ACTING CHIEF JUSTICE (ORAL)
1. The Appellants are the legal heirs of the deceased Sh. Sant Kumar who was an employee of the Respondent. Sh. Sant Kumar had raised the dispute challenging the termination of his services which was referred to the Labour Court with the following terms of reference:-
"Whether the services of Shri Sant Kumar have been terminated by the management illegally and/or unjustifiably, and if so, to what relief is he entitled and what directions are necessary in this respect?"LPA 11/2012 Page 1 of 9
2. The case set up by the deceased workman was that he was employed with the Respondent since 17.10.1973 as a Weaver. He took leave from 8.9.1981 to 13.11.1981 which was sanctioned. He had gone to his native place where he had fallen sick. Therefore he sent a leave application from his native place to the Respondent applying for the leave for a period of one month. After expiry of leave when he reported for duty alongwith fitness certificate, he was informed that his services have been terminated w.e.f. 23.11.1981. According to him, neither any termination letter was given nor he was paid any retrenchment compensation and notice pay and therefore, termination was in violation of Section 25F of the Industrial Disputes Act. In its defence, the Respondent invoked provisions of para 17-D of the Standing Orders as per which absence without authorization for more than 10 days would amount to misconduct warranting dismissal from service. The Respondent stated that as no leave application was received after 13.11.1981, invoking the aforesaid Standing Orders, his services stood terminated w.e.f. 23.11.1981.
3. We would like to mention here that during the pendency of the proceedings before the Labour Court, the factory of the Respondent at Bara Hindu Rao, Delhi was closed down after taking permission of the Lt. LPA 11/2012 Page 2 of 9 Governor, NCT of Delhi. The Respondent accordingly moved an application for amendment of written statement stating that in view of the said closure, the question of reinstatement of the workman did not arise.
4. The Labour Court passed the award dated 22.9.1995 holding the termination of deceased workman as illegal and unjustified. We are not recording reasons for holding so, as that aspect of the matter is not in dispute before us. On the issue of relief, the Labour Court was of the view that the deceased workman was entitled for reinstatement. However, since in the meantime, the Respondent had closed the mill w.e.f. 1st April, 1989, the Labour Court directed that he would be entitled to backwages till the closure of the mill of the Respondent. The operative portion of the Award, in this behalf, reads as under:-
"In view of the above, I hold the workman entitled for reinstatement but for closure of the Mill w.e.f. 1.1.1989 since the termination of the workman is illegal, unconstitutional he is entitled for back wages till closure of the mill of the management. Order passed accordingly."
The Labour Court thus held that termination was illegal and the workman was even entitled to reinstatement. However, this relief of reinstatement could not be given only for the reason that the Mill had been LPA 11/2012 Page 3 of 9 closed down w.e.f. 1.1.1989. For this reason, full back wages upto the date of closure were awarded.
5. The Respondent challenged this award by filing the writ petition. The deceased workman also filed the writ petition claiming reinstatement on the ground that there were other establishments of the Respondent management where the workman could be reinstated. However, during the pendency of these writ petitions, workman died and this is how the present Appellants were brought on record.
6. The learned Single Judge has affirmed the Award of the Labour Court insofar as it holds termination of the workman to be illegal. The learned Single Judge has also held that the Award of full back wages upto the date of closure of the Mill is also justified. Accordingly, insofar as writ petition of the Respondent is concerned that has been dismissed by the learned Single Judge and the Respondent has accepted that order as no further appeal is preferred by the Respondent. This aspect has, thus, attained finality.
7. Dealing with the writ petition of the Respondent, the learned Single Judge has held that since the workman had expired during the pendency of LPA 11/2012 Page 4 of 9 the writ petition, in his writ petition the learned Single Judge held that the relief of reinstatement has become infructuous. Faced with this situation, the alternate plea of the Appellant was that even if the workman was not reinstated because of the closure of the mill and he was granted backwages till the closure, he was also entitled to closure compensation under Section 25FFF of the Industrial Disputes Act, inasmuch as in normal course when the workman is entitled to be reinstated and the reinstatement was not possible because of the closure of the mill, compensation could have been awarded by the Labour Court. The learned Single Judge has, however, rejected the prayer of closure compensation only on the ground that the workman did not take any specific plea in this behalf.
8. Challenging this part of the order of the learned Single Judge denying closure compensation, present appeal is preferred.
9. Mr. Sabharwal, learned counsel appearing for the appellants submitted that in the given circumstances it was not necessary to specifically make a prayer for grant of closure compensation before the Labour Court and when the Labour Court itself found that the workman was entitled to reinstatement and this reinstatement could not be given only because of the closure of the Mill, relief could be moulded by granting closure LPA 11/2012 Page 5 of 9 compensation in place of reinstatement. On the other hand, learned counsel appearing for the Management submitted that when a particular relief is not demanded the same was not to be paid as held by the Supreme Court in J.K. Iron and Steel Company Ltd. Vs. Iron and Steel Mazdoor Union and others, 1956 1 LLJ 227. He also referred to the judgment of Supreme Court in the case of Life Insurance Corporation of India Vs. R. Dhandapani 2006 I CLR 32.
10. On consideration of the submissions of the learned counsel for the parties, we are of the view that there was no justified reason for denying the closure compensation to the appellants. As noted above, the Labour Court itself found that termination of the services of the workman was illegal and he was entitled to reinstatement. As on the date of the Award, the workman was alive and on this finding of the Labour Court, which has not been interfered with by the learned Single Judge as well, the workman would have been reinstated in service but for the fact that the Mill in which he was working had been closed down by the management. Mr. Sabharwal is right in his submission that in these circumstances when it becomes a reason which prevented the Labour Court to reinstate the workman, the relief could have been moulded by giving closure compensation which is the statutory entitlement of the workman under Section 25-FFF of the ID Act. The LPA 11/2012 Page 6 of 9 workman had claimed a larger relief of reinstatement and therefore nothing prevented the Labour Court from giving lesser relief when larger relief became impermissible due to the aforesaid reasons.
11. The judgments cited by the learned Counsel for the Respondent will have no application to the facts of the present case. In J.K. Iron & Steel Ltd. (supra), the Management had retrenched the workers on the ground of shortage of raw material which was likely to continue for some time. The Industrial Tribunal found that retrenchment was not due to any victimization or lack of bona fides, directed reinstatement of the concerned workman and directing lay-off in rotation in place of retrenchment, it was in these circumstances, the Supreme Court set aside the Award holding that the Labour Court could not go tangent disregarding the pleadings and giving the relief which was not claimed. That is not the position in the present case where the relief of closure compensation is intimately connected with the main relief as this occasion arose because of the closure of the Mill of the Respondent during the pendency of the proceedings and the management itself filed application for amendment on this aspect.
12. Similarly, in Life Insurance Corporation (supra), the workman was removed from service after inquiry in which he did not participate. The LPA 11/2012 Page 7 of 9 inquiry was held on the charge of unauthorized absence. Though the removal was held illegal by the Tribunal as well as the learned Single Judge in the writ petition, the Division Bench allowed the LPA holding the termination to be valid. Still the Division Bench directed the LIC to grant pension to the workman for the period of service. It is this order of the Division Bench granting pension was set aside by the Supreme Court in the absence of logical reasoning and holding that there should not be misplaced compassion. In the present case, we find that in the event of closure, the closure compensation is the statutory right.
13. Matter can be looked into from another angle as well. The workman was terminated in 1981 and the Mill was closed down in the year 1989. When the termination is held to be illegal, it is deemed that the workman was in service and he would have continued in that position till the date when the Mill was closed down. On closure of the Mill, he would have got closure compensation. On this ground also the respondent cannot deny closure compensation to the appellants.
14. We thus allow this appeal and direct the respondent to pay closure compensation to the appellants, legal heirs of the deceased workman in accordance with the provisions of Section 25FFF of the ID Act treating the LPA 11/2012 Page 8 of 9 workman to be in service from the date of his engagement in the year 1973 till the date of closure of the Mill in 1989. The appellant shall also be entitled to costs of ` 10,000/-. The payment shall be made within four weeks.
ACTING CHIEF JUSTICE (RAJIV SAHAI ENDLAW) JUDGE JULY 20, 2012 dk/skb LPA 11/2012 Page 9 of 9