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SUPREME COURT OF INDIA
S.B.Majmudar : U.C.Banerjee
Municipal Corporation Of Delhi (Mcd)
Versus
Prem Chand Gupta
Case No. : 7764 of 1997
Date of Decision : 12/16/99
Advocates Appeared: Gupta G.D. : Kumar Ranjeet : Mahajan Ashok Kr : Tamta Binu
INDUSTRIAL DISPUTE - TERMINATION OF SERVICE - VIOLATION OF RULE 5 OF THE CENTRAL CIVIL SERVICES (TEMPORARY SERVICE) RULES, 1949 AND SECTION 25-F OF THE INDUSTRIAL DISPUTES ACT, 1947 - REINSTATEMENT WITH CONTINUITY AND BACK WAGES - MODIFICATION OF BACK WAGES TO 50% FROM THE DATE OF TERMINATION TILL REINSTATEMENT.
Fact of the Case:
The respondent workman was appointed by the appellant Corporation on a temporary post of Section Officer (Civil) on 5-5-1964. His services were terminated on 1-8-1964 and he was reappointed on 1-10-1964. He continued in service till 29-4-1966 when his services were again terminated. The respondent workman raised an industrial dispute and got it referred to the Labour Court, Delhi. The Labour Court held that the termination of service was not punitive in nature and the respondent workman was not entitled to any relief. The respondent workman filed a writ petition under Article 226 of the Constitution of India before the High Court of Delhi. The learned Single Judge of the High Court dismissed the writ petition. The respondent workman filed Letters Patent Appeal No. 93 of 1982 before the Division Bench of the High Court. The Division Bench allowed the appeal and directed reinstatement of the respondent workman with continuity entitling him to receive all salaries and allowances from the appellant Corporation.
Finding of the Court:
The Division Bench of the High Court erred in relying upon the judgment of this Court in Senior Supdt., R.M.S., Cochin v. K.V. Gopinath, Sorter case as the said decision was expressly overruled by treating it to be per incuriam by a later Bench of this Court in the case of Union of India v. Arun Kumar Roy. The termination of the respondent workman was not violative of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949 as the amended Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 which came into force on 1-5-1965 was applicable in his case. The termination of services of the respondent workman on 29-4-1966 was violative of Section 25-F of the Industrial Disputes Act, 1947 and was, therefore, null and void.
Issues: 1. Whether the impugned termination order of the respondent workman dated 29-4-1966 was violative of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949 or Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. 2. If the decision on the first point is in the negative and in favour of the appellant Corporation whether the impugned order of termination can be said to have violated Section 25-F of the Industrial Disputes Act, 1947 and consequently the final decision rendered by the Division Bench can be sustained on that ground. 3. What appropriate final order.
Ratio Decidendi: 1. The amended Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 which came into force on 1-5-1965 was applicable in the case of the respondent workman. The said rule did not require the employer to simultaneously offer compensation to the temporary government servant as a condition precedent to such termination. Such compensation could be offered to him within reasonable time thereafter. 2. The termination of services of the respondent workman on 29-4-1966 was violative of Section 25-F of the Industrial Disputes Act, 1947 as the requirements of the said section were not complied with by the appellant Corporation. 3. The respondent workman is entitled to be reinstated in service with continuity and all further consequential benefits on that score, save and except the grant of full back wages. The respondent workman will be entitled to get 50% of back wages from the date of his termination i.e. from 29-4-1966 till his actual reinstatement in service of the appellant Corporation with continuity of service.
Final Decision: The impugned order of the Division Bench of the High Court insofar as it holds that the termination order of the respondent workman dated 29-4-1966 was violative of Rule 5 of the relevant rules is set aside. However, the final order passed by the High Court ordering reinstatement of the respondent workman with continuity of service is upheld on the alternative ground holding termination of services of the respondent workman on 29-4-1966 to be violative of Section 25-F of the Industrial Disputes Act. So far as back wages are concerned, the impugned order of the High Court is modified by directing that the respondent workman will be entitled to get 50% of back wages from the date of his termination i.e. from 29-4-1966 till his actual reinstatement in service of the appellant Corporation with continuity of service. The appeal stands allowed as aforesaid with no order as to costs in the facts and circumstances of the case.
S.B.MAJMUDAR, J.
(1) THIS appeal on grant of special leave to appeal under Article 136 of the Constitution of India by the Management of the Municipal Corporation of Delhi against Respondent 1, who is the only contesting party, has brought in challenge the judgment and order of the Division Bench of the High Court of Delhi in Letters Patent Appeal No. 93 of 1982 by which the High Court directed reinstatement of Respondent 1 in service with continuity entitling him to receive all salaries and allowances from the appellant Corporation. In order to appreciate the grievance of the appellant Corporation against the said order, a few relevant introductory facts need to be noticed at the outset.
(2) RESPONDENT 1 (hereinafter referred to as "the respondent workman") was appointed by the appellant Corporation on the temporary post of Section Officer (Civil) on 5-5-1964 with the condition that he would be considered for confirmation after one year of satisfactory service. It is the case of the appellant Corporation that the respondent workman was never considered for confirmation. On 1-8-1964 he was informed that his services were not required by the Corporation w.e.f. 1-9-1964. Thus he ceased to be an employee of the appellant Corporation from that date. However, from 1-10- 1964 he was reappointed on a vacant post caused by the termination of services of another employee. It is not in dispute between the parties that he continued to be in the service of the appellant Corporation without any break till 31-3-1965. According to the appellant Corporation, he was again re-employed on 1-4-1965 and he continued to be in service till 29-4-1966 when his services were terminated. It becomes at once clear that though, according to the appellant Corporation, the respondent workmans services were terminated on 31-3-1965 and he was re-employed on the next day i.e. 1-4-1965, in substance there was no break in his service. It is, therefore, to be taken as a well-established fact on record that from 1-10-1964 till 29-4-1966 for about 18 months the respondent workman was in continuous service as a temporary Section Officer (Civil) and was working on a vacant substantive post caused by the termination of services of another employee.
(3) ON account of the aforesaid termination of service, the respondent workman raised an industrial dispute and got it referred by the appropriate Government for adjudication to the Labour Court, Delhi. The terms of reference were as follows:
"WHETHER Prem Chand Gupta, Section Officer (Overseer) has been wrongly and/or illegally discharged from service and if so, to what relief is he entitled?"
The Labour Court, after hearing the parties, came to the conclusion that as the respondent workmans services were terminated by the appellant Corporation in exercise of its powers under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949 (hereinafter referred to as "the rules") and the said action of the appellant Corporation was not punitive in nature, the respondent workman was not entitled to any relief. However, the Labour Court further held on facts that the respondent workman could be said to have been terminated from service without payment of retrenchment compensation as a condition precedent to such retrenchment. Still it was held that the said retrenchment could not be covered under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as "the ID Act") as he was not terminated due to the staff being in excess of the requirement of the Corporation. Thus even on the ground of violation of Section 25-F he was not entitled to any relief. The said decision was rendered on 7-1-1970.
(4) BEING aggrieved by the said decision of the Labour Court, the respondent workman filed a writ petition under Article 226 of the Constitution of India before the High Court of Delhi. The learned Single Judge of the High Court dismissed the said writ petition and co
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