Delhi Development Authority Vs. Labour Court No. Viii and anr. - Court Judgment

Excerpt:
(i) labour and industrial - termination - section 25 of industrial disputes act, 1947 - petition filed challenging order of reinstatement of employee terminated by petitioner - petitioner terminated without any enquiry and only on ground that he was charged for murder from which he had been acquitted - provisions of section 25 also not complied with while terminating employee - held, termination invalid. (ii) application - order 9 rule 13 of code of civil procedure, 1908 - application made under order 9 rule 13 for setting aside ex-parte award can be entertained and disposed off even after expiry of 30 days from passing of award. - - had the petition been disposed off prior to the decision of the hon'ble supreme court in anil sood's case (supra), this order as well as the impugned award would have to be scrutinised. its failure to do so compounds the agony already suffered by the workman, for no fault of his own.vikkamajit sen, j.in the writ petition the following prayer has been made.'in the circumstances, it is most respectfully prayed, this hon'ble court shall be pleased to issue a writ in the nature of a writ of certiorari or any other writ order or direction, quashing the impugned award dated august 4, 1989 and the order dated august 30, 1993 passed by the respondent no. 1 in l.c.i.d. no. 349 of 1987 with a direction to the respondent no. i to hear the matter afresh and then decide the same or call for the records of the case and decide the same and or pass such other or further order or orders as may be deemed fit and proper.'2. a reading of the prayer reveals that when the writ petition was filed the petitioner had not sought the relief of the case being remanded to the labour court. this was obviously for the reason that it was not in the contemplation of the parties that the labour court was not rendered functus officio thirty days after the passing of the award as this was the prevailing judicial opinion on this point. the hon'ble supreme court has now clarified by its order dated december 1, 2000 passed in civil appeal no. 7092/2000 entitled anil sood v. presiding officer, labour court ii that its earlier pronouncement had been misconstrued and that the proper understanding is that the labour court retains the power to entertain and dispose off an application under order ix rule 13 for the setting aside of the ex parte award even after the said period of thirty days. this is being mentioned for the reason that mr. sabharwal, learned counsel for the petitioner, has argued that the case be remanded back to the labour court for a fresh determination of the petitioner's application under order ix rule 13, inasmuch as the court had adhered to the view that it had been rendered functus officio. it was his contention that the interest of justice would be met if the remand order is passed subject to costs.3. mr. rajiv aggarwal, learned counsel appearing on behalf of workman, however, submits that it would be unfair to the workman concerned to amplify and broaden the sweep of the relief claimed for in the writ petition. it was contended that the workman has already awaited for adjudication of his claim and despite the passing of the impugned award, has not been reinstated. if the case is relegated to the labour court, mr. rajiv aggarwal contended, the workman would suffer the great hardship of a de novo adjudication. the impugned award, which is beyond assault on merits, would automatically be set aside. he has strenuously contended that since the writ petition is pending the workman's application under section 17-b of the industrial disputes act should be disposed off. he has further submitted that the writ-petition itselfbe disposed off as the workman is desirous of employment and is not merely seeking orders for payment of wages. in the face of these diametrically opposed stands, arguments on the entire matter were heard.4. the petitioner's application under order ix rule 13 had been disposed off by the labour court on august 30, 1993, on the premise that it had been rendered functus officio. had the petition been disposed off prior to the decision of the hon'ble supreme court in anil sood's case (supra), this order as well as the impugned award would have to be scrutinised. this court would, thereforee, have to enter upon the facts that preceded the passing of the ex parte award. the decision of the hon'ble supreme court in anil sood's case (supra) does not mandate that in every case wherein an award has been passed ex parte, and an application for setting it aside has been filed, it must be remanded back and cannot be considered by the high court. since there is every likelihood, nay a certainty, of the workman concerned suffering inordinate and grave hardship, i am of the view that it is expedient to dispose off the matter in its entirety.5. the ground stated in the application filed under order ix rule 13 of the code of civil procedure, 1908 was that delhi development authority was never served. in paragraph six it has been averred so, and has been stated that 'the service ought to have been effected to the secretary or vice-chairman of d.d.a. and service upon the division is not a proper or legal service in the eye of law'. on a reading of paragraph two of this application it will be clear that the delhi development authority had full knowledge of the proceedings. it had been served firstly through its executive engineer, western division-ix. thereafter service was once again ordered by the court, on the submission made by the executive engineer that notice may be sent to another department. the delhi development authority is not entitled to any treatment different to that of any other litigant. the rider thereto is that, keeping its enormity in view, service must be effected in a meaningful manner. it cannot be appreciated that the executive engineer, western division-ix should not be expected to inform the relevant department. the labour court, however, needlessly pandered to this whimsical demand and ordered fresh notice which was duly served at the radhu palace office of the delhi development authority. this time the response of the delhi development authority was that a copy of the claim petition had not been received. as there was no representation on behalf of the petitioner the labour court proceeded ex parte against the petitioner vide its order dated august 30, 1993. even if the labour court had declined to adjudicate on the application under order ix rule 13 this order dated august 30, 1993 has been assailed before this court, i am convinced that no sufficient cause has been disclosed by the petitioner for recalling the order by which the labour court had proceeded ex parte against the delhi development authority. in these circumstances the petitioner's plea in its application dated april 24, 1990 is rejected.6. i shall now turn to the impugned award. a reading discloses that the services of shri subhash, workman, were terminated and the reference to the labour court was in the following term 'whether the termination of services of shri subhash is legal and/or justified if not what directions are necessary in this respect?' the case of the workman is that he was in the employment of the delhi development authority as a sweeper from 1979, initially as a 'daily wager' and thereafter in regular employment with effect from january 6, 1983. unfortunately he was arrested in a murder case in april 1983 but was acquitted on january 31, 1985. consequent upon his release from jail he reported back for duty in the first week of february 1985. the petitioner refused to take back the workman on duty on june 16, 1987. the workman was neither given any opportunity of being heard nor was he served with a charge-sheet nor was any enquiry held against him. it is further alleged that he was not served with a notice of termination nor was he paid any retrenchment compensation. in fact no suspension order was passed.7. after considering the testimony or the workman, the labour court has returned a finding that the workman had been regularised with effect from january 6, 1983. on the basis of his unrebutted statement the labour court returned a finding that there is no justification on the part of the management to refuse employment and duties to the workman. it is in these circumstances the labour court held that the termination of the workman was illegal and unjustified and that he was entitled to reinstatement in service with continuity of service and with full back wages.8. the petitioner is unable to successfully assail any of the findings in the impugned award on merits. it is not even contended that the petitioner/dda had suspended the workman or had been issued a charge-sheet; or that the dda had conducted an enquiry; or that dda had terminated the services of the respondent no. 2 on the ground of any misconduct including that of his being charged for murder; or that dda had complied with the provisions of section 25 of the industrial disputes act. the workman having been acquitted of the charge of murder by the competent court, it would be expected of the delhi development authority, which is a governmental authority, to act with sympathy towards the workman. i see no justification whatsoever for the petitioner not to have reinstated the workman with full back wages and continuity of service consequent on his being acquitted. the workman has already suffered the ignominy, anguish and anxiety of having to face a murder trial as an accused. the petitioner ought to have considered it fit to extend some recompense to the workman, by immediately reinstating him. its failure to do so compounds the agony already suffered by the workman, for no fault of his own. there are very few cases where society has compensated one of its members who has been wrongly charged of an offence, his being incarcerated and removed from his livelihood.9. viewed in all its complexities the writ petition is without merit. the court ought not to lose sight of the fact that in almost eight out of every ten cases the management chooses or allows itself to be proceeded with ex parte. a challenge to the award is thereafter invariably made under article 226 of the constitution. this exacerbates the injury already caused to the workman. on december 11, 1997 my learned brother cyraic joseph, j. had asked the petitioner to consider whether it would not be in the interest of justice that the workman is allowed to join duty subject to the final decision in the writ petition. this observation, indicative as it is of the judicial thought process, has gone unheeded.10. the writ petition is accordingly dismissed, c.m. 1072/2000 filed by the workman under section 17-b of the industrial disputes act does not call for determination as the writ petition has been dismissed. the application is disposed off accordingly. the sum deposited by the petitioner in this court, if not already released, should be released to him within a fortnight.