Delhi High Court
A.I.I.M.S. vs Government Of Nct Of Delhi And Ors. on 30 August, 2005
Equivalent citations: (2006)IILLJ201DEL
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT
A.K. Sikri, J.
1. W.P.(C) No. 3237/1994 is taken up with the consent of the parties.
2. In all these petitions, the workmen were working on daily wage basis with the petitioner, namely, All India Institute of Medical Sciences. Their services were terminated and challenging their termination, they raised industrial disputes. Separate references were made for adjudication and the awards were given holding that their termination is illegal. However, while giving the relief of reinstatement with back wages, the Industrial Tribunal (for short ‘the Tribunal’) directed that back wages shall be given at par with the regular employee in their category in view of the judgment of this Court in the case of MCD v. Ganesh Razak 1994 LLR 82.
3. All these workmen were taken into service Mr. Gupta, learned Counsel for the petitioner submitted that their services except Mr. Ram Kumar have since been regularised as he is no more in the employment of the petitioner as of today and according to the petitioner, he had left his services on his own will.
4. The challenge in these petition is only qua the direction given by the Tribunal directing payment of back wages at the rate at which salary is paid to the regular employees on the ground that while granting the relief in this manner, the Tribunal exceeded its jurisdiction.
5. The contention of learned Counsel for the petitioner has merit. It may be noted that the only reference made to the Tribunal was regarding the termination of services of these workmen. All these references were of identical nature and for the sake of convenience, reference made in one such case is reproduced below:
Whether the services of Shri Ram Kumar have been terminated illegally and/or unjustifiably by the management and if so, to what, relief is he entitled and what directions are necessary in this respect?
6. There was no reference qua the regularisation which is totally an independent matter. While holding that the services of these workmen were terminated illegally, the Tribunal would put back them in the position in which they were at the time of their employment and, therefore, would make an order for payment of wages which they were getting at the time of their termination or the payment of minimum wages if the last drawn wages were less than the minimum wages prevalent during the intervening period. It may be noted that while awarding the wages at the rate at which regular employees are getting the wages, the Tribunal relied upon the judgment of this Court in the case of MCD v. Ganesh Razak (supra) which has since been over-ruled by the Supreme Court in the case of MCD v. Ganesh Razak . Furthermore, it has now been conclusively held by the Supreme Court in the case of Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. and in the judgment of this Court in the case of Govt. of NCT v. Kamlesh and Anr. 1996 I LLJ 469 (Del-DB) that while adjudicating the dispute regarding termination of an adhod daily wage worker, the Tribunal/Labour Court cannot award the back wages at the rate at which regular employees are getting wages.
7. For all these reasons, these writ petitions are allowed and rule is made absolute. The impugned award to this extent is set aside. It is clarified that issue as to whether AIIMS is “industry” or not is kept open.
8. At this stage, learned Counsel for the respondent submitted that while issuing show cause notice, the Division Bench has passed order staying the operation of the award in so far as it relates to the payment of back wages in excess of minimum wages. Since the workmen in any case, shall be entitled to back wages at the rate at which minimum wages are payable, it is made clear that the workmen shall not be liable to refund the said amount to the petitioner/management. However, in case these workmen have received the payment which is more than the minimum wage, the petitioner shall be entitled to recover the same from these workmen.
9. No costs.