* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
% Date of order : 31 January, 2024.
+ W.P.(C) 9340/2019
UTTAM CHAND BHATIA ..... Petitioner
Through: Mr.Sudhir Sharma, Advocate
versus
GOVT. OF NCT OF DELHI AND ANR. ..... Respondent
Through: Mr.Kamal Kant Tyagi, Advocate for
R-2
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The petitioner vide the present petition under Article 226/227 of the
Constitution of India has been filed on behalf of the petitioner seeking the
following reliefs:
(i) Direct the Respondent to reinstate Petitioner with complete
“
back wages and all the consequential benefits may also be
granted to the petitioner by modifying the award dated
05.01.2019 OR in the alternative
(ii) direct the respondent to pay an amount of Rs. 30,00,000/-
as compensation for mental harassment and loss of livelihood
and loss of reputation, career prospects and as a penalty
towards malicious prosecution, wrongfully tampering/
influencing the domestic enquiry and trial before the Ld.
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Labour Court, mental agony, etc.
(iii) Direct the Respondent No. 2 to pay cost of litigation of
rupees three lac.
(iv) Any other or further relief as this Hon'ble Court may deem
fit and proper, in the interest of justice, may also be granted in
favour of the petitioner and against the respondents..
”
2. The petitioner was appointed at the post of General Worker with the
respondent no. 2 (hereinafter respondent hotel ) vide appointment letter
“ ”
th
dated 27 June, 1989.
3. A complaint of theft was filed against the petitioner by a customer of
the respondent no. 2 stating that the petitioner workman stole her mobile
phone which she had left on a table in one of the hotel rooms.
th
4. The management of respondent hotel issued chargesheet dated 4
January, 2007 against the misconduct of the petitioner. Pursuant to the same,
th
the petitioner submitted its reply on 20 January, 2007 to the aforesaid
chargesheet.
st
5. Thereafter, the respondent no. 2 vide letter dated 31 January, 2007
appointed Ms. Jyotica Bhasin as the Enquiry Officer to conduct the enquiry
into the complaint made against the petitioner. After conclusion of the
enquiry, the enquiry report was submitted and petitioner‟s employment with
the respondent no. 2 was terminated vide termination letter dated 6th
February, 2008.
th
6. Thereafter, the petitioner on 14 February, 2008, sent a demand notice
to the respondent no. 2 seeking his reinstatement and payment for the time
when he was terminated. The respondent hotel did not reply to aforesaid
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demand notice of the petitioner.
7. Subsequently, the petitioner filed its claim under Section 2A and
Section 10 (1) of the Industrial Disputes Act, 1947 (hereinafter "the Act")
before the learned Labour Court. The respondent hotel filed its reply to the
claims of the petitioner.
8. Accordingly, the issues were framed and the witnesses were examined
by the learned Labour Court. The learned Labour Court then passed the
th
impugned award dated 5 January, 2019 wherein the learned Labour Court
directed the respondent hotel to pay Rs. 6,50,000/- to the petitioner as
compensation.
9. Aggrieved by the impugned award, the petitioner has preferred instant
petition.
10. Learned counsel appearing on behalf of the petitioner submitted that
the impugned award has been passed by the learned Labour Court in
violation of the principles of natural justice and without appreciating the
evidence placed on its record by the petitioner.
11. It is submitted that the petitioner is entitled to reinstatement along-
with the consequential benefits instead of a lumpsum compensation as
awarded by the learned Labour Court.
12. It is further submitted that the amount which the learned Labour Court
has awarded as compensation to the petitioner is meagre in comparison to
the harassment as well as inconvenience which the petitioner workman had
to suffer. Hence, the petitioner is entitled for enhancement of the lumpsum
compensation awarded to the petitioner.
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13. It is submitted that the enquiry initiated against the petitioner by the
respondent no. 2 was not conducted in a fair manner, since the enquiry
officer refused to summon the duty registers as well as the other competent
witnesses on the request of petitioner therefore, the petitioner was unable to
present his defence before the enquiry officer.
14. It is submitted that the respondent management has failed to prove
that the petitioner had entered into the room in the absence of the guest. The
same is also evident from the fact that the MW-4, Smt. Shalini Upreti
conceded in her evidence that Sh. Jaya Raghu, Shantanu as well as Sh. Rohit
entered the said room in the absence of the guest.
15. It is submitted that the respondent has failed to prove even on the
basis of preponderance of probability that the petitioner stole the hotel
e phone.
guest‟s mobil
16. It is submitted that the respondent maliciously issued chargesheet to
the respondent to terminate the petitioner since, the petitioner had demanded
a raise in his wage.
17. In view of the foregoing submissions, the learned counsel for the
petitioner prayed that the petition may be allowed and the reliefs as claimed
by the petitioner may be granted by this Court.
18. Per Contra, the learned counsel appearing on behalf of respondents,
vehemently opposed the aforesaid submissions, submitting to the effect that
the impugned order has been passed in accordance with the settled position
of law and merits no interference.
19. It is submitted that the learned Labour Court has correctly held that a
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considerable delay has lapsed since the petitioner was terminated and
accordingly, the learned Court has rightly exercised its discretion in
awarding the lump sum compensation.
20. It is further submitted that the learned Labour Court did not award
reinstatement to the petitioner since the respondent management had lost
confidence in the petitioner workman as it was found that the petitioner
workman stole . Reliance in
the mobile phone of a respondent hotel‟s guest
this regard has been placed up
on the judgment of the Hon‟ble Supreme
Court in Kanhaiyalal Agrawal and Ors. v. Factory Manager, Gwaliar
Sugar Co. Ltd. (2001) 9 SCC 609 in this regard.
21. It is contended that the learned labour Court has the discretion vested
under the law to award the lumpsum compensation in lieu of reinstatement
along with the consequential benefits to the petitioner. The learned counsel
for the respondent has placed reliance on the following judgments in this
regard Sain Steel Products v. Nepal Singh and Others (2003) 4 SCC 628,
Pramod Kumar and Another v. Presiding Officer and Another, (2005)
SCC OnLine Del 951, Delhi Transport Corporation v. Presiding Officer
and Anr., (2001) SCC OnLine Del 1242 and Rattan Singh v. Union of
India, (1997) 11 SCC 396.
22. In view of the foregoing submissions, learned counsel for the
respondents prayed that the present petition is devoid of any merits and may
be dismissed by this Court.
23. Heard the learned counsel appearing on behalf of the parties and
perused the material on record.
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24. It is the case of the petitioner that it was wrongly alleged that he had
stolen the mobile phone of one of the guest of the respondent hotel.
Moreover, the enquiry conducted by the enquiry officer in this regards was
tainted with mala fide intentions of the respondent hotel in order to terminate
a raise in his
the petitioner‟s employment since the petitioner demanded
wage.
25. In rival submissions, the respondent submitted that the impugned
award has been passed in accordance with the settled principle of law and
the learned Court has correctly held that a considerable amount of time has
been elapsed since the termination of the petitioner and therefore, the
petitioner was awarded lumpsum compensation in lieu of reinstatement
along with the consequential benefits.
26. In order to adjudicate the instant petition, it is imperative to note the
powers of this Court under Article 226 of the Constitution of Indi. Under the
said provision, this Court has a very limited power to intervene into the
working of the executive. The High Court under its writ jurisdiction shall not
intervene with the working of the executive unless there is a prejudice
caused to any party by the executive authority or the executive authority is
not acting as per the mandate of a particular statute.
27. The position as to what must be observed by the High Court while
exercising an issuance of writ in the form of certiorari can be fairly summed
up via two cardinal principles of law, firstly, the High Court does not
exercise powers of an appellate authority and it does not review or peruse
the evidence upon which the consideration of the inferior Court purports to
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have been based. The writ of certiorari can be issued if an error of law is
apparent on the face of the record. Secondly, in such cases, the Court has to
take into account the circumstances and pass an order in equity and not as an
appellate authority. Simply put, certiorari is issued for correcting errors of
jurisdiction exercised by inferior Courts, for Courts violating principles of
natural justice and acting illegally and, the Court issuing such a writ shall act
in supervision and not as appellate authority.
28. Further, it is also imperative for this Court to briefly revisit the
The term
settled law regarding issuance of the „writ of mandamus‟.
m
andamus means „a command‟. A writ of mandamus is issued in favor of
a person who establishes a legal right in himself. It is issued against a
person who has a legal duty to perform but has failed and/or neglected to
do so. Such a legal duty emanates from discharge of a public duty or by
operation of law.
29. Now adverting to the issue at hand.
30. Before delving in to the technical aspects of the instant matter, this
Court finds it pertinent to analyze the impugned award. The relevant portion
of the impugned award has been reproduced herein below:
In the light of above, the management has been failed to
“
establish the mis-conduct on the part of workman resultantly,
the act of management of terminating the services of the
workman is found to be illegal and unjustified. The issue/point
is liable to be decided in favour of workman and against the
management. Same stands decided accordingly.
Relief
In his statement of claim the workman has prayed that an
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award may be passed in favour of workman thereby seeking
direction to reinstate the workman with full back wages and
continuity of his service with all consequential benefits but in
the considered opinion of the court this is not a fit case for the
reinstatement, particularly in the facts and circumstances of the
case, and also as a considerable period of time has been
elapsed and the end of justice will be served if a lump sum
compensation is awarded to the workman instead of
reinstatement, backwages, and other consequential benefits.
Accordingly, in view of the above discussion and terms of
reference, and keeping in view the tenure of service of the
workman with the management and the material available on
record, a lumpsum compensation of Rs.6.50.000/- (Rupees Six
Lakh Fifty Thousand Only), is awarded to the workman instead
of reinstatement and backwages and other consequential
benefits. The management is directed to pay the said
compensation amount of Rs.6,50,000/- (Rupees Six Lakh Fifty
Thousand Only) is awarded to the workman instead of
reinstatement and backwages and other consequential benefits.
The management is directed to pay the said compensation
amount of Rs.6,50,000/- (Rupees Six Lakh Fifty Thousand Only)
to the workman within three months from the date of
publication of award. If the management failed to pay the said
amount of Rs.6.50.000/- (Rupees Six Lakh Fifty Thousand Only)
to the workman within the stipulated period, the workman is at
liberty to get recover the said compensation amount of
Rs.6.50,000/- (Rupees Six Lakh Fifty Thousand Only) from the
management along with an interest @8% p.a. from the date of
passing of award till the date of recovery of the amount of
compensation. The award is passed accordingly. Requisite
copies of award be sent to the competent authority for
publication as per
provisions of Industrial Disputes Act.”
31. Upon perusal of the impugned award, it is evident that the learned
Labour Court passed the award holding that the management of the
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respondent hotel has failed to establish that there was any misconduct, i.e.,
alleged theft of mobile phone committed by the petitioner. Hence, the issue
was decided in favour of the petitioner.
32. The learned Labour Court further observed that the instant case is not
fit for grant of reinstatement along with the all consequential benefits since,
a considerable amount of time has elapsed. Therefore, in order to serve the
ends of justice a lumpsum compensation of Rs. 6,50,000/- along-with an
interest of 8% per annum from the date of award till the date of recovery of
the amount of the compensation is awarded in favour of the workman.
33. The position of law with regard to whether the Courts can award
lumpsum compensation instead of reinstatement along-with consequential
benefits to the workmen while adjudicating upon an Industrial Dispute is
settled.
34. It is a settled law that if the Labour Court is of the opinion that the
award of certain compensation would meet the ends of justice in a particular
case, then keeping in mind the relevant facts and circumstances of that case,
the Labour Court has the power to award compensation even though there
may be a claim for back wages or reinstatement made by the workman.
35. This power is derived from Section 11-A of Industrial Disputes Act,
which deals with power of Labour Courts, Tribunals and National Tribunals
to give appropriate relief in case of discharge or dismissal of workmen.
Section 11-A of the Act has been reproduced herein below for reference:
"..11A. Powers of Labour Courts, Tribunals and National
Tribunals to give appropriate relief in case of discharge or
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dismissal of workmen. Where an industrial dispute relating to
—
the discharge or dismissal of a workman has been referred to a
Labour Court, Tribunal or National Tribunal for adjudication
and, in the course of the adjudication proceedings, the Labour
Court, Tribunal or National Tribunal, as the case may be, is
satisfied that the order of discharge or dismissal was not
justified, it may, by its award, set aside the order of discharge
or dismissal and direct reinstatement of the workman on such
terms and conditions, if any, as it thinks fit, or give such other
relief to the workman including the award of any lesser
punishment in lieu of discharge or dismissal as the
circumstances of the case may require: Provided that in any
proceeding under this section the Labour Court, Tribunal or
National Tribunal, as the case may be, shall rely only on the
materials on record and shall not take any fresh evidence in
relation to the matter…”
36. The aforesaid position of law has also been reiterated in the judgment
of U.P. State Brasware Corporation Ltd. Vs. Uday Narain Pandey, 2006
1(SCC) 479, relevant portions of which have been reproduced as follows:
30. In Panitole Tea Estate v. Workmen [(1971) 1 SCC 742 :
“
(1971) 3 SCR 774] a two-Judge Bench of this Court while
considering the question as regards grant of relief or
reinstatement, observed: (SCC p. 747, para 5)
le of reinstatement in the absence of special
“The general ru
circumstances was also recognised in the case of Workmen of
Assam Match Co. Ltd. v. Presiding Officer, Labour
Court [(1973) 2 LLJ 279 (SC)] and has again been affirmed
recently in Tulsidas Paul v. Second Labour Court, W.B. [(1972)
4 SCC 205 (2)] In Tulsidas Paul [(1972) 4 SCC 205 (2)] it has
been emphasised that no hard-and-fast rule as to which
circumstances would establish an exception to the general rule
could be laid down and the Tribunal must in each case decide
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the question in a spirit of fairness and justice in keeping with
the objectives of industrial adjudication.”
31. In Surendra Kumar Verma v. Central Govt. Industrial
Tribunal-cum-Labour Court [(1980) 4 SCC 443 : 1981 SCC
(L&S) 16 : (1981) 1 SCR 789] this Court refused to go into the
question as to whether termination of services of a workman in
violation of the provisions of Section 25-F is void ab initio or
merely invalid or inoperative on the premise that semantic
luxuries are misplaced in the interp
retation of “bread and
butter” statutes. In that context, Chinnappa Reddy, J. observed:
(SCC p. 447, para 6)
“Plain common sense dictates that the removal of an order
terminating the services of workmen must ordinarily lead to the
reinstatement of the services of the workmen. It is as if the
order has never been, and so it must ordinarily lead to back
wages too. But there may be exceptional circumstances which
make it impossible or wholly inequitable vis-à-vis the employer
and workmen to direct reinstatement with full back wages. For
instance, the industry might have closed down or might be in
severe financial doldrums; the workmen concerned might have
secured better or other employment elsewhere and so on. In
such situations, there is a vestige of discretion left in the court
to make appropriate consequential orders. The court may deny
the relief of reinstatement where reinstatement is impossible
because the industry has closed down. The court may deny the
relief of award of full back wages where that would place an
impossible burden on the employer. In such and other
exceptional cases the court may mould the relief, but, ordinarily
the relief to be awarded must be reinstatement with full back
wages. That relief must be awarded where no special
impediment in the way of awarding the relief is clearly shown.
True, occasional hardship may be caused to an employer but
we must remember that, more often than not, comparatively far
greater hardship is certain to be caused to the workmen if the
relief is denied than t
o the employer if the relief is granted.”
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32. Yet again, no law in absolute terms had been laid down
therein. The Court proceeded on the basis that there may be
situations where grant of full back wages would be inequitable.
In the fact situation obtaining therein, the Court, however was
of the opinion that there was no impediment in the way of
awarding the relief. It is interesting to note that Pathak, J., as
His Lordship then was, however was of the view: (SCC p. 450,
para 13)
as been retrenched in
“Ordinarily, a workman who h
contravention of the law is entitled to reinstatement with full
back wages and that principle yields only where the justice of
the case in the light of the particular facts indicates the
desirability of a different relief.”
The expres
sion “ordinarily” must be understood given its due
meaning. A useful reference in this behalf may be made to a
four-Judge Bench decision of this Court in Jasbhai Motibhai
Desai v. Roshan Kumar [(1976) 1 SCC 671] wherein it has
been held: (SCC p. 682, para 35)
35
“ . The expression „ordinarily‟ indicates that this is not a
cast-iron rule. It is flexible enough to take in those cases where
the applicant has been prejudicially affected by an act or
omission of an authority, even though he has no proprietary or
even a fiduciary interest in the subject-matter. That apart, in
exceptional cases even a stranger or a person who was not a
party to the proceedings before the authority, but has a
substantial and genuine interest in the subject-matter of the
proceedings will be covered by this rule. The principles
enunciated in the English cases noticed above, are not
inconsistent with it.”
33. In J.N. Srivastava v. Union of India [(1998) 9 SCC 559 :
1998 SCC (L&S) 1251] again no law has been laid down in the
fact situation obtaining therein. The Court held that the
workmen had all along been ready and willing to work, the plea
of “no work no pay” as prayed for should not be applied.
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34. We may notice that in M.D., U.P. Warehousing
Corpn. v. Vijay Narayan Vajpayee [(1980) 3 SCC 459]
and Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhawan
Ltd. [(1984) 3 SCC 5 : 1984 SCC (L&S) 333] although an
observation had been made to the effect that in a case where a
breach of the provisions of Section 25-F has taken place, the
workmen cannot be denied back wages to any extent, no law,
which may be considered to be a binding precedent, has been
laid down therein.
35. In PGI of Medical Education & Research v. Raj
Kumar [(2001) 2 SCC 54 : 2001 SCC (L&S) 365] Banerjee, J.,
on the other hand, was of the opinion: (SCC p. 58, paras 11-12)
11. The learned counsel appearing for the respondents,
“
however, placed strong reliance on a later decision of this
Court in PGI of M.E. & Research v. Vinod Krishan
Sharma [(2001) 2 SCC 59] wherein this Court directed
payment of balance of 60% of the back wages to the respondent
within a specified period of time. It may well be noted that the
decision in Soma case [PGI of M.E. & Research v. Soma, CA
No. 12558 of 1996] has been noticed by this Court in Vinod
Sharma case [(2001) 2 SCC 59] wherein this Court apropos the
decision in Soma case [PGI of M.E. & Research v. Soma, CA
No. 12558 of 1996] observed:
„A mere look at the said judgment shows that it was
rendered in the peculiar facts and circumstances of the case. It
is, therefore, obvious that the said decision which centred
round its own facts cannot be a precedent in the present case
which is based on its own facts.‟
We also record our concurrence with the observations made
therein.
12. Payment of back wages having a discretionary element
involved in it has to be dealt with, in the facts and
circumstances of each case and no straitjacket formula can be
evolved, though, however, there is statutory sanction to direct
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payment of back wages in its entirety. As regards the decision
of this Court in Hindustan Tin Works (P) Ltd. [(1979) 2 SCC 80
: 1979 SCC (L&S) 53 : (1979) 1 SCR 563] be it noted that
though broad guidelines, as regards payment of back wages,
have been laid down by this Court but having regard to the
peculiar facts of the matter, this Court directed payment of 75%
back wages only.”
45. The Court, therefore, emphasised that while granting
relief, application of mind on the part of the Industrial Court is
imperative. Payment of full back wages, therefore, cannot be
the natural consequence.
51. The said decisions were, however, distinguished
in Mohan Lal v. Bharat Electronics Ltd. [(1981) 3 SCC 225 :
1981 SCC (L&S) 478] Desai, J. was of the opinion: (SCC p.
238, para 17)
17 isions which rule that
“ . … But there is a catena of dec
where the termination is illegal, especially where there is an
ineffective order of retrenchment, there is neither termination
nor cessation of service and a declaration follows that the
workman concerned continues to be in service with all
consequential benefits. No case is made out for departure from
this normally accepted approach of the courts in the field of
social justice and we do not propose to depart in this case.”
56. A Division Bench of this Court in M.L. Binjolkar v. State
of M.P. [(2005) 6 SCC 224 : 2005 SCC (L&S) 827 : JT (2005)
6 SC 461] referring to a large number of decisions, held: (SCC
p. 228, para 6)
6[7
“ ]. … The earlier view was that whenever there is
interference with the order of termination or retirement, full
back wages were the natural corollary. It has been laid down in
the cases noted above that it would depend upon several factors
and the Court has to weigh the pros and cons of each case and
to take a pragmatic view.
”
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37. On the basis of the above, the compensation in certain cases is the
solution for unjustified and premature termination of employment. The relief
of compensation is more appropriate remedy in certain cases concerning the
question of unlawful termination of service of an employee. Hence, even if
the finding of the learned Labour Court is that termination is illegal, the
learned Labour Court has the power to decline reinstatement if it is of the
view that compensation will suffice.
38. This Court is of the view that since the petitioner was terminated in
the year 2008 and the impugned award has been passed in the year 2019, the
learned Labour Court has rightly adjudicated that the petitioner is not
entitled to be reinstated alongwith consequential benefits, considering the
elapse of time. Moreover, this Court also deems it apposite to grant the
petitioner lumpsum compensation instead of reinstatement.
39. In view of the aforesaid discussions, this Court is of the view that the
learned Labour Court has rightly exercised its jurisdiction by awarding
lumpsum compensation in lieu of the reinstatement alongwith consequential
benefits.
40. The writ of certiorari cannot be issued in the present matter since for
the issuance of such a writ, there should be an error apparent on the face of it
or goes to the root of the matter. However, no such circumstances are
present in the instant petition.
41. The instant petition is an appeal in the garb of a writ petition. The
petitioner is seeking a review of the impugned award despite the fact that
there are no such special circumstances that require the interference of this
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Court and the learned Labour Award has passed the impugned award in
accordance with law.The petitioner is not aggrieved by any such violation of
his rights , which merits interference of this Court.
42. In view of the discussion in the foregoing paragraphs, this Court does
not find any merits in the instant petition and is liable to be dismissed.
43. Accordingly, the instant petition stands dismissed alongwith pending
applications, if any.
44. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
JANUARY 31, 2024
SV/db/ryp
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