Compliance with Section 25F of the Industrial Disputes Act is necessary before terminating the service of a worker, and entitlement to reinstatement and back wages.

Kailash Gambhir, J. (Oral)-By way of this writ petition the petitioner has challenged the impugned order dated 26.4.2004 passed by the Tribunal. The principle contention of Counsel for the petitioner is that Section 2(OO)(bb) is applicable in the facts of the case and, therefore, no protection was required to be given to the respondent-workman as envisaged under Section 25F of the Industrial Disputes Act. Another contention which has been raised by the petitioner is that there was no regular post against which the respondent-workman was appointed and. therefore the order directing reinstatement of the respondent is bad in law. Counsel for the petitioner has also contended that the Tribunal has wrongly directed the regularization of the respondent. Since no regular vacancy was there, no regularization of the respondent could have been directed. On the other hand. Counsel for the respondent states that the respondent was a daily rated employee and admittedly the petitioner before terminating the service of respondent-workman had not taken recourse to Section 25F of the Industrial Disputes Act. Counsel for the respondent has placed reliance on the judgment of the Division Bench in the case of PWD Thr. Dy. Dir., Horticulture v. Satya Pal, reported in 132 (2006) DLT 571=2006 VII AD (Delhi) 810, and judgment of the Single Bench in WP(C) No. 13733/2006 titled as D.G. (Works), CPWD v. Shri Baldev Singh & Ors. The Division Bench of this Court has referred to the provision of Section 2(OO)(bb) and has said that the purpose of Section 2(oo)(bb) was introduced with a view to avoid saddling an employer with the liability under Section 25F of the Industrial Disputes Act only in those cases where the service of a worker has been engaged for a very short period say for 2-3 months. The Division Bench also held that the said provision of law is not meant to be invoked in a situation where the workman is in continuous employment. The operative portion of the Division Bench judgment in the case of Satya Pal (supra) is reproduced as under:

"It is thus contended by the learned Counsel for the appellant that the Tribunal was not justified in awarding back wages to the extent of 40%. In support of this submission, reliance is placed again on the judgment of the Honble Supreme Court in Rudhan Singhs case (supra) and of this Court in Management of Asiatic Air Conditioning and Refrigeration Pvt. Ltd. v. Presiding Officer. Labour Court-X and Anr., 114 (2004) DLT 358. As far as the Rudhan Singhs case (supra) is concerned, as already noticed, the worker there had worked for less than a year and that too in broken periods, and in those circumstances it was held that the worker would not be entitled to any back wages. As far as the judgment of this Court in the management of Asiatic Air Conditioning and Refrigeration Pvt. Ltds case (supra) is concerned, the decision not to award back wages turned on the fact that the organization was not so large that it could absorb the cost of paying the worker IS years back wages without having taken any work from him. It was nobodys case that the appellant herein is not a large organization and cannot absorb the liability of having to pay the respondent his back wages to the extent of 40% as awarded by the Tribunal.

14. Finally it is submitted that the proceedings were pending before the Tribunal since 1994 for over ten years and that the appellant should not be saddled with the liability for this period when the respondent was out of service. We are unable to accept this submission. The respondent equally cannot be expected to be made to suffer for the delay in the disposal of his claim by the Tribunal which is on account of a systemic failure, not attributable to the respondent. It is not the appellants case that the respondent caused the delay in the disposal of the case by the Tribunal. We do not find any infirmity in the award by the Tribunal of the 40% back wages upon reinstatement of the respondent."

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