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IN THE HIGH COURT OF DELHI AT NEW DELHI
Prathiba M. Singh, J.
M/s Garrison Engineer (central), Delhi Cantt - Appellant
Versus
M.J. Prasad & Ors. - Respondents
W.P.(C) 10809/2020;
Decided On : 15-03-2022
The Delhi High Court held that MACP/ACP benefits are not a matter of right and can only be granted to those workmen who have passed a trade test. In this case, the Workman admittedly having not passed the trade test, is not entitled to MACP/ACP benefits.
Fact of the Case:
The Workman was an employee of the Management since 1982 and he was working as a wireman. He was regularized in 1984 but was terminated vide order dated 15th November, 1985. The said termination was challenged by the Workman. Vide final order dated 16th June, 2000, the termination was held to be valid and justified by the CGIT in ID No.87/87 titled MJ Prashad v. AGEB&RT Garrison Engineer (Central). This order was challenged by the Workman before a Id. Single Judge of this Court in W.P.(C) 6796/2001 titled MJ Porashad v. AGEBR&T Garrison Engineer (Central) & Anr. Vide order dated 17th April, 2012, this writ petition of the Workman was allowed in the following terms: "xxx xxx xxx 10. The management had also contested the claim of the workman on the ground that his initial appointment was illegal and therefore, it was justified in invoking Sub-Rule 1 of Rule 5 of CCS (TS) Rules, 1965. As far as that part of the defence of the respondent is concerned, it has failed to establish the same by not adducing any evidence to show that the initial appointment of the petitioner-workman was illegal. 11. I, therefore, allow this writ petition. The impugned Award of CGIT is set aside. The termination of services of petitioner-workman is held to be in breach of mandatory provisions of Section 25-F of Industrial Disputes Act. Now, it is well settled by the decisions of Hon'ble Supreme Court that once the termination of services of an industrial worker is found to be in violation of the mandatory provisions of Section 25-F of the Industrial Disputes Act the termination is void ab initio. Reference in this regard can be made to one decision of the Supreme Court in the case of "Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1. Panipat", (2010) 5 SCC 497. Resultantly, the petitioner-workman is ordered to be reinstated in service. As far as the back wages are concerned, considering all the facts and circumstances and particularly the fact that he had worked as a regular employee only for a short period, the respondent no. 1-management shall pay him only 50% of his back wages. The petition stands disposed of accordingly."
Finding of the Court:
The Court held that the Workman was not entitled to MACP/ACP benefits because he had not passed the trade test required by the Management's policies. The Court also held that the RLC could not have gone into such complex issues while passing the impugned orders under Section 33C(1) of the ID Act, as the jurisdiction of the RLC is limited to awarding 'amounts due'. The ACP/MACP benefits would not constitute 'amounts due' in the facts and circumstances of the present case, especially in view of the order of the Id. Single Judge dated 17th April, 2012.
Issues: Whether the Workman is entitled to MACP/ACP benefits in view of the order dated 17th April, 2022, passed in W.P.(C) 6796/2001.
Ratio Decidendi: The Court held that MACP/ACP benefits are not a matter of right and can only be granted to those workmen who have passed a trade test. In this case, the Workman admittedly having not passed the trade test, is not entitled to MACP/ACP benefits.
Final Decision: The Court allowed the writ petition and set aside the impugned recovery certificates and attachment orders. However, in view of the protracted litigation, litigation expenses of Rs.50,000/- shall be paid by the Management to the Workman, within a period of two weeks, directly into the Workman's bank account.
JUDGMENT
Brief Facts
1. This is a petition challenging the impugned orders dated 30th October, 2019, 27th July, 2020, and 20th August, 2020 by which notice for recovery for a sum of Rs.1,95,980/- and for attachment of property under Sections 136 and 139 of the Delhi Land Reforms Act, 1954, has been issued to the Petitioner/Management (hereinafter "Management'), by the SDM, Delhi Cantt. and by the Regional Labour Commissioner (Central), Delhi (hereinafter "RLC).
2. This petition has a long history. The Respondent-Workman (hereinafter "Workman') was an employee of the Management since 1982 and he was working as a wireman. He was regularized in 1984 but was terminated vide order dated 15th November, 1985. The said termination was challenged by the Workman. Vide final order dated 16th June, 2000, the termination was held to be valid and justified by the CGIT in ID No.87/87 titled MJ Prashad v. AGEB&RT Garrison Engineer (Central). This order was challenged by the Workman before a Id. Single Judge of this Court in W.P.(C) 6796/2001 titled MJ Porashad v. AGEBR&T Garrison Engineer (Central) & Anr. Vide order dated 17th April, 2012, this writ petition of the Workman was allowed in the following terms:
"xxx xxx xxx
10. The management had also contested the claim of the workman on the ground that his initial appointment was illegal and therefore, it was justified in invoking Sub-Rule 1 of Rule 5 of CCS (TS) Rules, 1965. As far as that part of the defence of the respondent is concerned, it has failed to establish the same by not adducing any evidence to show that the initial appointment of the petitioner-workman was illegal.
11. I, therefore, allow this writ petition. The impugned Award of CGIT is set aside. The termination of services of petitioner-workman is held to be in breach of mandatory provisions of Section 25-F of Industrial Disputes Act. Now, it is well settled by the decisions of Hon'ble Supreme Court that once the termination of services of an industrial worker is found to be in violation of the mandatory provisions of Section 25-F of the Industrial Disputes Act, the termination is void ab initio. Reference in this regard can be made to one decision of the Supreme Court in the case of "Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1, Panipat", (2010) 5 SCC 497. Resultantly, the petitioner-workman is ordered to be reinstated in service. As far as the back wages are concerned, considering all the facts and circumstances and particularly the fact that he had worked as a regular employee only for a short period, the respondent no. 1-management shall pay him only 50% of his back wages. The petition stands disposed of accordingly."
3. The appeal against the said order of the Id. Single Judge was dismissed by the Division Bench, on the ground of delay in filing the same, on 4th January, 2013, in LPA No.764/2012 titled AGEB&R Garrison Engineer (Central) v. MJ Porashad & Anr. and the SLP (C.) No.14018/2013 titled AGEB & R Garrison Engineer (Central) v. MJ Porashad & Anr., against the said order was also dismissed on 3rd November, 2014. Thus, the order of the Id. Single Judge setting aside the termination of the Workman and awarding reinstatement and 50% back wages has attained finality.
4. In terms of the said order dated 17th April, 2012, certain payments have been made by the Petitioner to the Workman. The Workman has also provided an undertaking dated 1st June, 2015, confirming receipt of specific payments to the following effect:
"UNDERTAKING
I MES-371450 MJ Prasad, Elect (SK) undertake that I have received the following arrears of my pay & allowances:-
(a) 15.11.85 to 31 .07.2012 = 50% back wages of Rs 11,69,823/- vide GE (Central) Delhi Cantt Cheque No. 797470 dt 23 Feb 2015.
(b) 01.08.2012 to 21.04.2015 - 50% back wages ofRs 476075/- received from GE (Central) Delhi Cantt vide cheque No. 797560 dt 30.05.15 on 01 Jun 2015
(c) 22.04.2015 to 31.05.2015-1 have been reinstated in service wet 22 Apr 2015 and received the full sal
AI
MACP/ACP benefits are not a matter of right and can only be granted to those workmen who have passed a trade test.
Employees reinstated with continuity in service are entitled to gratuity for the entire duration of employment, including the period post-termination, as per statutory provisions.
However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour C....
In cases of wrongful termination, reinstatement with back wages is the normal rule unless the employer proves the employee was gainfully employed during the termination period.
Wrongful termination without employee fault, later quashed, entitles full back wages for absence period and ACP increments with service continuity, rejecting 'no work no pay' where employee willing b....
Once violation of Sections 25(F), (G) and (H) of the Industrial Disputes Act is established, reinstatement should follow, as per the decision in Gauri Shanker vs. State of Rajasthan.
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