JUDGMENT
Mukul Mudgal, J.
1. Rule. With the consent of the counsel for the parties, the writ petition is taken up today for final hearing.
2. This writ petition challenges the Award dated 26th July, 2002, passed in I.D.No.68/1995 by the Presiding Officer, Labour Court No.VII, Delhi(hereinafter referred to as the `Labour Court’).
3. The grievance of the petitioner/workman is that in spite of the Labour Court’s recording the finding in favor of the petitioner that the services of the petitioner were illegally terminated by the management, that is the Madhya Pradesh Administration through its Deputy Commissioner, Madhya Pradesh Bhawan, New Delhi(hereinafter referred to the as the `Management’) which is the respondent No.2 in the writ petition where the petitioner/workman was employed as a `Peon’, the consequence of such a finding, i.e., reinstatement or compensation in lieu of reinstatement has not been granted to the petitioner/workman.
4. The relevant findings of the Tribunal are as follows:-
“The employer in the present case has resorted to a method of giving fixed terms appointment with a view to take the case of the workman out of Section 2 of the I.D. Act and to terminate his services despite the continuity of the workman and job requirements. The services of the workman has been continued from time to time right from 3.12.1991 till 1.3.1994. The workman had thus completed 240 days of continuous employment with the management.
Perusal of documents Ex.WW1/7 to Ex.WW1/10 reveal that workman has worked for 240 days in a year. MW1 Shri Bhulender Sharma, Section Officer of the management has also admitted in his cross-examination that workman had worked continuously from 13.12.1991 to 28.2.94. He has however, stated that the workman was given breaks after every 89 days. According to him, he was given appointment for 89 days as per the policy of the Govt. In my opinion, since the workman has completed 240 days of services, his services could not have been terminated by the management without compliance of Section 25 of the I.D. Act. In the present case, the management has not complied with Section 25 of the I.D. Act. MW1 has admitted in his cross-examination that no notice or notice pay in lieu thereof or service compensation was given to the workman before termination of his services. Section 25 of the I.D. Act runs as under:-
a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay (for every completed year of continuous service) or any part thereof in excess of six months; and
c) notice in the prescribed manner is served on the appropriate Government (for such authority as may be specified by the appropriate Government by notification in the Official Gazette).
c) notice in the prescribed manner is served on the appropriate Government (for such authority as may be specified by the appropriate Government by notification in the Official Gazette).
Perusal of the above section clearly reveals that workman was to be given one months notice in writing indicating the reasons for retrenchment. Clause (b) contemplates that the workman shall be paid retrenchment compensation equivalent to fifteen days of average pay for each completed year of service. Clause (c) contemplates that notice is also to be served to the appropriate Govt. in the prescribed manner. The management has admittedly not complied with the above conditions. Thus, the termination of the services is illegal.”
5. In view of the above findings of the Labour Court which have not been challenged by the management before this Court, the petitioner/workman would have been entitled to reinstatement and in the alternative compensation in lieu of reinstatement. The Labour Court has, as submitted by the petitioner’s counsel and in my view rightly, resorted to an illusory and meaningless relief being given to the workman by directing as follows in the operative portion of the Award:-
“The next question which now arises for consideration is as to what relief the workman is entitled to? The management has submitted that no other workman has been appointed in place of the workman after his termination. It is submitted that the temporary post for which the workman was working was not filled up after his alleged termination. In my opinion, since there is no permanent or temporary vacancy where the workman can be adjusted, he cannot be ordered to be reinstated with the management as the management cannot be burdened with the services of the workman which is no more required. However, it is made clear that whenever the management appoints any other person as a temporary or permanent workman for the post for which the workman was employed, he will be considered and will have a right to the appointment as per law.
As the management has not complied with Section 25 of the I.D. Act, I am of the opinion that management should pay the retrenchment compensation to the workman as well as one month’s notice pay as per the requirement of Sec-25 of the I.D. Act. Since the management has not paid the amount which was mandatory as per the provision of Sec-25 of the I.D. Act, the management is directed to pay the above said amount with interest @ 9% per annum. It is ordered accordingly.”
6. The learned counsel for the petitioner submitted that Section 25F compliance is mandatory at the time of the termination of services and no retrospective compliance of Section 25 can be ordered by the Labour Court upon finding the termination to be unlawful. Section 25 reads as under:-
“25F. Conditions precedent to retrenchment of workmen.– No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until–
(a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay [for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may be specified by the appropriate Government by notification in the Official Gazette].
He also submitted that a litigant such as the respondent/state of M.P. cannot first violate Section 25F then brazenly submit that it would not bear the consequences of such an action found to be illegal by the labour Court. He also submitted that the assurance that whenever an appointment is made the petitioner will be considered and appointed in law is a meaningless sop for two reasons. One there is no assurance that he will be appointed and secondly the only assurance is that he shall be considered for appointment in accordance with law. He submits that the labour Court has erred in making meaningless its finding of non compliance of Section 25F.
7. Mr. B.S. Banthia, the learned counsel, appearing for the Management has submitted and reiterated the plea taken by the management before the Labour Court and the fact that the petitioner/workman was engaged in the exigencies of the work from time to time and initially for a fixed period of 89 days. He has further defended the relief granted to the petitioner/workman and has submitted that the award suffers from no infirmity. He has also raised a plea regarding the territorial jurisdiction of the Labour Court in Delhi and submits that since the respondent/Management was situated in the State of MP, the claim of the petitioner should have been tried at the State Labour Tribunal situated at Gwalior(Madhya Pradesh).
8. Since the Labour Court’s adjudication on merits on the assumption of jurisdiction, has not been challenged by the State Government, it is not open to the State Government to take this plea before this Court. Even otherwise this plea is devoid of substance.
9. The learned counsel for the respondent/State of Madhya Pradesh sought to rely upon the order of the learned Single Judge dated 4th September, 2002 in CW No. 5862/2001, which reads as follows:-
“Learned counsel for the State of Madhya Pradesh (Respondent No. 1) makes a statement that the Madhya Pradesh Administrative Tribunal is functioning even today.
In view of the fact that the Petitioner is an employee of the Madhya Pradesh Government, the jurisdiction in the case rests with the Madhya Pradesh Administrative Tribunal.
The Registry of this Court will, therefore, transfer the case papers to the Madhya Pradesh Administrative Tribunal, Principal Bench at Jabalpur immediately.
Parties to appear before the Madhya Pradesh Administrative Tribunal on 30th September, 2002.
The matter be shown as disposed of so far as this Court is concerned.”
10. The above order in my view is not an authority for holding that the Labour Court in Delhi did not have jurisdiction for an employment dispute arising in respect of a Delhi establishment. Furthermore, the learned counsel for the respondent has relied on the judgment of the same learned Single Judge, Hon’ble Mr. Justice Madan B. Lokur in the Management of CCW v. Partap Singh, 2004 VI AD (DELHI) 395 where a view taken by a Full Bench of the CAT to the following effect had been affirmed by the learned Single Judge :-
“3. It may be pointed out that in A. Padmavalley v. CPWD, 1991(1) SLR (CAT) 245, a Bench of five members of the Central Administrative Tribunal, Hyderabad Bench took a view that in matters pertaining to the Industrial Disputes Act, an applicant seeking relief must ordinarily exhaust the remedy available under that Act. I find no reason to take a different view and it must be held that the Respondent/workman was entitled to avail the benefits of the provisions of the Industrial Disputes Act.”
11. In my view this plea of the respondent about the lack of jurisdiction of Labour Court in Delhi, cannot be sustained because (a) it is not in dispute that the petitioner was working in Madhya Pradesh Bhawan, Chanakaya Puri, New Delhi (b) Consequently, even if the Labour Court had erroneously upon assumption of jurisdiction found against the State Government on merits, such an adjudication has not been challenged by the State Government and the respondent cannot be permitted to raise this plea for the first time before this Court as a respondent.
12. This apart from the conduct of the respondent which is a State Government while attempting to evade the mandate of the Industrial Disputes Act by giving short-term appointments for 3 years for periods of 89 days by giving artificial breaks leaves much to be desired as the State is expected to be a model employer. Furthermore while exhorting the private employers by virtue of Industrial Legislation to follow the mandate of Section 25 of the ID Act, the State Government is seeking to evade both the letter and spirit of the law by resorting to such tactics of successive short term employment of the petitioner/workman to evade the impact and consequences of rights of the workman and such an attempt deserves to be deprecated. In any case, there is no merit in the plea of the State Government and I am bound by and indeed respectfully agree with the view taken by the learned Single Judge of this Court in Management of CCW v. Partap Singh (supra) that in matters involving adjudication under ID Act remedy must first be resorted to for industrial adjudication.
13. Having found that the termination of the petitioner to be unlawful, the Labour Court ought to have granted reinstatement with back wages. Even if it found that reinstatement was not possible or feasible, then it ought to have granted compensation in lieu thereof by giving cogent reasons therefore. None of these courses was adopted by the Labour Court, which had given an operative portion of the order which is wholly contradictory with the finding recorded by it and indeed renders such findings nugatory. It is not open to a Labour Court upon finding that there was admitted non-compliance of the mandate of Section 25 of the ID Act to deny relief on the ground that posts of Peon were not available without granting adequate and sufficient compensation in lieu of reinstatement. An ex-post facto compliance of Section 25 with interest as directed by the Labour Court cannot validate the basic infirmity of non-compliance of the mandatory requirement of Section 25 at the time of the termination of services. It is well settled that Section 25 is to be complied with at the time of termination of services and no ex-post facto curative measures such as payment under Section 25 with interest can cure the inherent defects which renders such termination invalid ab-initio. Secondly a party violating the law cannot be aided by a direction not to direct the consequences of its violation on pleading that the post in question was not available.
14. On the last date of hearing, the respondent No. 2 was asked whether the matter could be settled by payment of a lumpsum payment as compensation in lieu of reinstatement in full and final settlement of the petitioner’s claim. The petitioner has accordingly furnished a statement of amount payable at the minimum wages up to date. The counsel for the respondent, however, on instructions which are discernible from the additional affidavit filed by the Deputy Commissioner of Government of Madhya Pradesh has rather than respond to the suggestion of payment of of lumpsum amount, has indeed attempted to take additional pleas which have already been dealt with by this Court in this judgment. Apart from the fact that this was not the response sought on the last date of hearing by the Court, even otherwise the pleas raised in the additional affidavit are wholly devoid of merits and have been rejected. The affidavit indeed exemplifies the stance of bureaucratic obduracy which has permeated the approach of the State of M.P., in this Court. The writ petition is accordingly allowed and the operative portion of the award is set aside and the petitioner is held entitled to reinstatement at the post of Peon held by him on the date of his termination with full back wages from the date of the termination of services till the date of payment. The petitioner upon reinstatement would naturally be entitled to be paid the wages at the minimum of wage scale of a Peon regularly appointed as per the mandate of the Supreme Court in Daily Rated Casual Labour employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India and Ors. reported as where it was held as under:-
“The State cannot deny to casual labourers at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. Such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starving wages.”
The petitioner will also be entitled to interest @ 9% p.a. on the amount found due. However, even now it is open to the State of Madhya Pradesh to respond before the next date of hearing by offering suitable compensation in lieu of reinstatement and if a suitable and reasonable response showing its bonafides is given the Court may consider the question of waiver of interest and heavy costs which the petitioner is fully entitled to.
15. The writ petition stands allowed in the above terms. However, the response of the State of Madhya Pradesh be awaited. Whether the matter is settled or not, depends upon the reasonableness of the response of the Statement Government. The reinstatement, costs and payment of interest may be waived in case an appropriate response comes forth from the management, i.e., the respondent, Madhya Pradesh State Administration.
16. List on 6th April, 2005 to await the response of the State of Madhya Pradesh.
17. A copy of the order be given dusty to the counsel for the parties under the signatures of the Court Master.