* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 2030/2006
% Reserved on: July 16, 2010
Decided on: August 25, 2010
SHRI SHYAM BABU ..... Petitioner
Through: Mr. V.P.Tripathi, Advocate
versus
GOVT. OF NCT OF DELHI ..... Respondent
Through: Ms. Avnish Ahlawat, Advocate
Coram:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
MUKTA GUPTA, J.
CM No.11830/2010 (Exemption)
Allowed, subject to all just exceptions.
CM No.11829/2010 (Delay)
For the reasons stated in the Application the delay of 78 days in
filing the Review Petition is condoned. Application is allowed.
LPA No.2030/2006 Page 1 of 6
Review Petition No. 275/2010
1. The Appeal filed by the Petitioner was disposed of vide order
dated 14th January, 2010 passed by this Court with the directions to the
Respondent to make payment of `.1 lakh to the Petitioner as
compensation in lieu of reinstatement within six weeks failing which
the amount would carry interest at the rate of 9% per annum. The
Petitioner was working as Beldar (Daily Wager) with Respondent
sometime since October, 1982 and on 12th March, 1984 he made an
Application to the Respondents seeking regularization and a regular
pay scale. While the matter was still pending before the Conciliation
Officer, his services were terminated with effect from 1st August, 1984.
The Petitioner made an Application under Section 33A of the Industrial
Disputes Act, 1947 alleging that his services were illegally terminated
and a reference was made by the appropriate Government to the
Industrial Tribunal with respect to his claim of regularization and
termination from service. Though the Respondent claimed
abandonment of service, however no reference was made on this issue.
The two issues before the Industrial Tribunal were of regularization
and illegal termination of service of the Petitioner. The Industrial
Tribunal awarded in favour of the Petitioner and directed reinstatement
with continuity of service and back wages. On a challenge by the
Respondent, the learned Single Judge, set aside the two awards
following the decision in Secretary, State of Karnataka v. Uma Devi
LPA No.2030/2006 Page 2 of 6
and others, 2006 (4) SCC 1 and held that the regularization cannot
be directed if the initial entry itself is not against any sanctioned
vacancy.
2. Impugning the order dated 5th September, 2006 passed by the
learned Single Judge the Petitioner filed the Appeal wherein this Court
held that the Industrial Tribunal was correct in holding that the
services of the Petitioner has been illegally and unjustifiably terminated
in violation of the provisions of Section 25F of the Industrial Disputes
Act. With regard to the other relief it was held that the Petitioner was
a daily wager who had worked for less than two years and even if it was
concluded that the services were illegally terminated on 1st August,
1984, the Petitioner has no right to retain the post being a daily wager.
This Appeal was heard at length on 13th and 14th January, 2010. On 14th
January, 2010 learned counsel for the Petitioner made a statement not
pressing his claim for regularization in view of the decision of the
Hon’ble Supreme Court in Secretary, State of Karnataka vs. Uma
Devi & others (supra), in our view rightly so as the law laid down by
the Hon’ble Supreme Court clearly enunciates that a daily wager has
no right to be regularized if the recruitment is bypassing the
constitutional scheme of public employment. This Court thus granted
compensation of `. 1 lakh in lieu of reinstatement to the Petitioner.
3. By way of this Review Petition the Petitioner seeks to contend that
the Petitioner should have been regularized and the action of the
LPA No.2030/2006 Page 3 of 6
Respondent is violative of Article 14 and 16. It is contended that the
Petitioner never intended to give up his claim of regularization and the
counsel authorized by the Petitioner has wrongly submitted this fact
before the Court. It is further stated that no copy of the policy change
had been placed by the Respondent and in any case the compensation
of ` 1 lakh is on the lower side and the Petitioner is entitled to
reinstatement in services with continuity and full back wages.
4. The scope of a Review Petition is very limited. The Petitioner is
required to show either an error apparent on the face of the record or
discovery of new and important fact or evidence which, after the
exercise of due diligence, was not within his knowledge or could not be
produced when the judgment was passed. The ground now being raised
that four employees junior to the Petitioner have been regularized, and
thus, is violation of Articles 14 and 16 of the Constitution of India, has
not been urged in the Appeal. In a Review Petition the Petitioner is not
entitled to raise fresh pleas unless it is shown that the Petitioner was
not in possession of the relevant material, despite due diligence. The
contention that the Petitioner had given no instructions to the earlier
counsel to give up the claim of regularization is also untenable. The
Appeal was heard on 13th January, 2010 and then on 14th January, 2010.
It was only after going through the legal position in view of the decision
of the Hon’ble Supreme Court in Secretary, State of Karnataka vs.
Uma Devi and others (supra) learned counsel on instructions from
LPA No.2030/2006 Page 4 of 6
the Petitioner made the statement on the next day. It may be noted
that the Petitioner is in the habit of making such allegations. Earlier
also vide order dated 15th April, 2009 this Court had felt that this was a
case which could be settled between the parties and had requested the
parties to consider this aspect. When the matter came up for hearing
on 26th May, 2009 learned counsel for the Petitioner on instructions
from the Petitioner stated that without prejudice to the rights and
contentions in the Appeal in order to arrive at a settlement the
Petitioner is willing to give up the claim of back wages, continuity in
service and seniority provided he is treated in a similar fashion as other
persons of his vintage who remained in service. Learned counsel for the
Respondents took time to look into this aspect of the matter and in
pursuance thereto filed an Affidavit of Shri H.S. Bhardwaj, Executive
Engineer, CD-V, Irrigation and Flood Control Department, Government
of NCT of Delhi stating that the matter was considered and it was felt
that according temporary status to one workman, may result into
opening of flood gate for other similarly placed casual/daily wager who
had at one time or the other worked/engaged by the department. It
was also stated that accepting this proposal would amount to creation
of posts which could not be done without undergoing all other
necessary formalities. The Affidavit also states that the appointment of
daily wagers has been stopped long back since 1988 and that time also
daily wagers were engaged as per exigency of work. The Respondent
LPA No.2030/2006 Page 5 of 6
offered to get the Petitioner engaged as unskilled worker through
outsourcing agency, which offer was not acceptable to the Petitioner. In
the present review petition the Petitioner has filed copy of the
complaint against the learned counsel who had made the statement on
26th May, 2009. In our view, the withdrawal of the claim for
regularization was reasonable and fair on the part of the learned
counsel for the Petitioner in view of the decision of the Hon’ble
Supreme Court.
5. The contention that the monetary compensation being on the
lower side is also untenable as this Court granted the compensation of
1 lakhs in lieu of reinstatement following the precedent laid by the
Hon’ble Supreme Court in Jasbir Singh vs. Haryana State
Agricultural Marketing Board and another, JT 2009 (9) SC 396.
6. We find no ground to interfere with the order dated 14th January,
2010. The Review Petition is dismissed.
(MUKTA GUPTA)
JUDGE
(VIKRAMAJIT SEN)
JUDGE
AUGUST 25, 2010
mm
LPA No.2030/2006 Page 6 of 6