Sapna Tours Travels and Leasing Pvt. Ltd. vs Govt. of NCT of Delhi and Another

V.K. Shali, J.—The petitioner has filed the present writ petition challenging the ex parte award dated 17th April, 2002 passed by the learned Labour Court � VII in ID No. 172/1997 titled as The Workman Sh. Kishan Ganeshji v. The Management of Sapna Tours and Travels and Leasing Pvt. Ltd.

By virtue of the aforesaid award dated 17.4.2002, the learned Labour Court has held that the termination of the services of the respondent/workman w.e.f. 07.1.996 by the petitioner/Management was illegal and unjustified and accordingly, it directed reinstatement with payment of full back wages and continuity of services.

Briefly stated the facts leading to the filing of the present writ petition are that the respondent/workman in his statement of claim had stated that he was working as a Driver with the petitioner/Management from 1993 and his last drawn wages were Rs. 2,500/- per month. The petitioner/Management was not providing any statutory benefits to the respondent/workman as a consequence of the protest raised by the respondent, his services were terminated on 7th January, 1996 without complying with the provisions of Section 25(F) of the Industrial Disputes Act, 1947 (hereinafter referred to as Act). A reference was made on 28th August, 1997 in the following terms by the appropriate Government:

Whether the services of Sh. Kishan Ganeshji have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?

On the basis of the aforesaid reference, the respondent/workman filed his statement of claim and the petitioner/management filed his written statement disputing the claim of the respondent/workman.

On the pleadings of the parties, the following two issues were framed, which reads as under:

1) Whether there is no relationship of employer and employee between the parties?

2) As per terms of reference.

The petitioner/Management after filing its written statement had abstained from appearing as a consequence of which they were proceeded ex parte on 6th August, 2001. The respondent/workman examined himself as a WW1 and proved his affidavit as Ex.WW1/A. the respondent/workman has also proved documents Ex.WW1/1 to WW1/39 out of which the document Ex.WW1/19 was specifically relied upon by the learned Labour Court in order to arrive at a finding that there is a relationship of the employee and employer between the parties. This finding was also governed by the fact that there was no cross examination of the respondent/workman and consequently his testimony was unrebutted which resulted in passing of the aforesaid award of reinstatement and payment of full back wages.

The petitioner in the present writ petition has challenged the ex parte award on the ground that there was violation of principles of natural justice. It is further stated that they had engaged one Mr. Amardeep Katyar, Manager (Accounts) who resigned in 2002. Further they had also shifted their office from G-3, Arunachal, Barakhamba Road, New Delhi to Janpath in January 1999 and thereafter to Ansal Bhawan in the year 2002. Due to shifting of the office, the staff members were leaving the organization as a consequence of which they could not follow up the aforesaid case which resulted in passing of an ex parte award and hence they are praying for setting aside the award.

The writ petition was filed on 10th January, 2006 and thereafter, the order of last two dates show that dates were taken by the petitioner for the purpose of arguments as well as for settlement. Today, the learned proxy counsel appearing for the petitioner has once again requested for adjournment on the ground that the Executive of the Company has gone to Bangalore and therefore, instructions could not be received. But even the counsel who had appeared on the last two dates is not present. The request for adjournment was disallowed. The proxy counsel appearing, on being asked to address arguments, expressed his inability to do so.

I have heard the learned Counsel for the respondent and perused the record. I do not find any infirmity in the ex parte award, which has been passed by the learned Labour Court nor has the petitioner been able to show any �sufficient cause. for their non-appearance after they have been duly served and they filed their written statement. Merely by appointing an employee of the Organization to follow up the case does not absolve the petitioner/Management of the responsibility of knowing as to what is happening in case even if the said employee had tendered his resignation. It is a case where the petitioner/Management has been grossly negligent and therefore, they must suffer from the same.

On account of these reasons, the award which has been passed on 17th April, 2002 by the learned Labour Court VII in ID No. 172/1997 is upheld and the plea of the petitioner/Management with regard to setting aside the same as they were prevented by �sufficient cause. to contest is disallowed.

Now the question which arises for consideration is that whether the respondent/workman even though his termination has been held to be illegal w.e.f. 7th January, 1996 should be granted benefit of reinstatement ipso facto and the grant of back wages. In this regard, the fact that the petitioner in the petition has stated that the business has been closed in 2003, the respondent/workman was also employed as a Driver and a driver will not find it difficult to get an alternative job. Therefore, without getting into the aforesaid facts, I feel that direction of reinstatement and the payment of back wages need to be modified by directing the petitioner to pay one lump sum compensation in terms of Section 11(A) of the Act.

In order to arrive at a quantum of compensation to be paid to the respondent/workman on account of his illegal termination, this Court is of the view that in case he would have continued in service from 07.1.1996, he would have served for about 13 years. Taking these emoluments to be Rs. 2,500/- per month which he was getting at the time when he was serving as a Driver seems to be below than the minimum wage and certainly much below in comparison to the wages which a Driver earns as on date. Even then for 13 years, the total emoluments would have been approximately Rs. 4,00,000/- if calculated @ Rs. 2500/- per month. I feel that 50% of the wages for these 13 years would constitute a just, fair and reasonable compensation to the respondent in lieu of the reinstatement of the payment of back wages. The said 50% would be approximately Rs. 2,00,000/-. I, accordingly, direct that the petitioner shall pay a compensation of Rs. 2,00,000/- to the respondent/workman within four weeks from today on account of his illegal and unjustified termination. In case the aforesaid compensation is not paid within four weeks, the same shall carry an interest of 7% per annum till the time of actual payment.

With these directions, the award dated 17.4.2002 stands modified and the writ petition stands disposed of.