North Delhi Municipal Corporation vs Krishan Kumar

CM No. 26272/2017 (application for condonation of delay)

Before examining the merits of the case, it is to be noted that there is an inordinate delay of 550 days on the part of the Appellant in filing the

present appeal.

The aforesaid delay is sought to be explained as under:-

“2. That after passing of the judgement, counsel sent the copy of the judgment after receiving it from the registry along with the opinion for

challenging the same.

That the said judgment with opinion got misplaced. The reason may be that the said writ was filed when MCD was not trifurcated. After

trifurcation files were distributed zone wise and because of some misunderstanding counsel letter with judgment may have been forwarded to wrong

zone.

That in the meanwhile the workman filed an application u/s 33-C for the recovery of the back wages from 01.01.2012 to 31.01.2016.

That the management came to know about the judgment dated 27.11.2015, when they received the recovery case file along with the coy of court

orders on 16.02.2017 from their counsel before the Labour Commissioner.

That the management immediately forwarded the file to higher authorities for taking their advise for further action in the said matter.

That in May 2017, the officers of the Corporation after taking approval from higher authorities contacted the counsel and directed to file LPA

challenging the judgement dated 27.11.2015.

That the accompanying LPA could not be filed during the stipulated time because of the reason that the copy of the judgment dated 27.11.2015 did

not reach to the concerned division, it may have been marked to some other division/officers inadvertently, not related to the instant matter, due to

which, the matter could not be taken up for challenge before the Hon’ble Court in due course of time.â€​

The aforesaid grounds and reasons seeking condonation of delay do not inspire any confidence. The explanation is frivolous, vague and inexact.

There is also no documentary evidence annexed with the application in support of the alleged reasons. The application also does not give any time line

or the details/dates of the movement of the file at the end of the Appellant. The attempt to explain the delay stating that the Management came to

know about the impugned judgment on 16th February 2017 when they received the recovery case file along with the copy of the court order from the

respondent’s counsel, is facetious to say the least.

There is no explanation whatsoever as to what transpired prior to 16 th February, 2017. The Appellant-Management cannot justify the delay by

taking shelter of the plea that the opinion on the judgment sought from the counsel, when received, was misplaced. Further, the plea of trifurcation of

the Municipal Corporation of Delhi can also not justify the gross delay. The plea of misunderstanding between the Appellant-Management and its

counsel, cited as one of the reasons for delay, is also completely bereft of merits.

The Supreme Court in the case of Postmaster General v. Living Media India Limited (2012) 3 SCC 563 has held as under:

“In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and

acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for

several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to

ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated

benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.â€​

The Appellant-management being a Corporation is expected to act diligently. The entire explanation for seeking condonation of delay shows a

casual and lackadaisical approach that cannot be countenanced. Therefore, the explanation of departmental delay on part of the Appellant deserves to

be discredited. The application seeking condonation of delay does not warrant any leniency. Accordingly, the application is dismissed.

L.P.A. 497 of 2017 & CM 26271/2017 (stay)

Nevertheless the appeal has also been examined on merits.

The Appellantâ€"North Delhi Municipal Corporation has preferred the present appeal assailing the judgment dated 27th November, 2015 passed by

the learned Single Judge in W.P.(C) 5513/2004 upholding the award passed by the Labour Court.

Briefly stated the facts of the case are that the respondent-workman i.e. Sh. Krishan Kumar joined the employment of Municipal Corporation of

Delhi (now North Delhi Municipal Corporation) as Mortarman on 15th March, 1989 as a daily muster roll worker. He continued in the employment of

the Appellant till 15th May, 1993 on which date, without assigning any reasons his services were terminated.

The case of the Appellant, however, is that the services of the respondent-workman were never terminated by the Management and that he on his

own stopped reporting to duty on 14th May 1993.

The respondent-workman raised an industrial dispute. The Labour Court, IX, Karkardooma, Delhi (hereinafter referred to as ‘Labour

Court’), passed an Award dated 7th July, 2003 ordering reinstatement of the respondent workman with full back wages.

The Appellant then challenged the Award in this Court by way of Writ Petition bearing No. W.P (C) 5513/2004. In the impugned judgment

dismissing the said writ petition, the learned Single Judge concurred with the findings of the Labour Court that the Appellant had not specifically denied

that the workman has completed 240 days of continuous service in the relevant year. The learned Single Judge has also noted and agreed with the

Labour Court that the muster roll produced by the Appellant was an incomplete document. Both, the Labour Court as well as Learned Single Judge

have thus concluded that respondent had completed 240 days of continuous service during the relevant year and he acquired the status of

‘workman’ within the meaning of the Section 2 (s) of the Industrial Disputes Act, 1947.

These being concurrent findings of fact, which have not been shown to be perverse, this Court finds no reason to interfere. Indeed, it was for the

Appellant to produce the complete record and in absence thereof, an adverse inference was rightly drawn against the Appellant. Once the Labour

Court arrived at a finding of fact that the status of the Respondent was that of a ‘workman’, the necessary sequitur that the Respondent was

entitled to the protection as provided under the Act, had to follow. Admittedly, no notice for termination was given by the Appellant to the respondent

as is the mandatory requirement under Section 25-F of the Act. There is no documentary evidence shown to us which can even remotely suggest that

the respondent abandoned the services of the Appellant. Therefore, the plea of abandonment is ex-facie without any merit. The learned Single Judge

has rightly concluded that the termination of the respondent's services is contrary to the provisions of the Industrial Disputes Act, 1947.

For the above reasons, the appeal is dismissed both on the grounds of delay and merits. The application is also dismissed.