IN THE HIGH COURT OF DELHI

AT NEW DELHI WRIT JURISDICTION

CIVIL WRIT PETITION OF 2018

IN THE MATTER OF:

Nepali Shah & Ors …Petitioner

Versus

M/s Continental Telepower Industries Ltd. …Respondent

INDEX

S.NO. PARTICULERS PAGE NO.

1. Memo of Parties

2. Petition under article 227 Constitution of

India arising out of order dated 31.05.2018

passed by Ld. Presiding Officer Labour

Court-X, Dwarka Courts, New Delhi.

3. ANNEXURE-A1. (A certified copy of the

impugned order dated 31.05.2018)

4. Vakalatnama

Petitioner

Filed Through:

New Delhi

Suraj Kumar Singh

Dated: 10.10.2018 SKS & Partners

Advocates & Legal Consultant

Chamber no. 565, Saket Court Complex

Mob: 9810329829
 IN THE HIGH COURT OF DELHI

AT NEW DELHI WRIT JURISDICTION

CIVIL WRIT PETITION OF 2018

IN THE MATTER OF:

Nepali Shah & Ors …Petitioner

Versus

M/s Continental Telepower Industries Ltd. …Respondent

MEMO OF PARTIES

1. Nepali Shah

2. Ram Gopal Sharma

3. Joginder Kumar

4. Narsingh Prasad

5. Ram Saran

6. Devi Prasad

C/o Delhi State Kamgar Union,

Balmukund Khnad Giri Nagar,

Kalkaji, New Delhi-110019 ….Petitioner

Versus

M/s Continental Telepower Industries Limited

B/244, Okhla Phase-I

New Delhi-110020 ….Respondent

Filed Through:

New Delhi

Suraj Kumar Singh

Dated: 10.10.2018 SKS & Partners

Advocates & Legal Consultant

Chamber no. 565, Saket Court Complex

 SYNOPSIS

The Petitioners have filed the present petition against the Order dated

31.05.2018 delivered by hon’ble Presiding Officer Labour Court, Dwarka,

New Delhi in Industrial Dispute Reference No. F.24(3411)/98-Lab./28378-

82. The Labour Court completely ignored the pain and sufferings of the

Petitioners and passed the award even against the existing legal position.

The Labour Court after the litigation battle of more than 20 years awarded

inadequate lump-sum compensation to the Petitioners which has caused

huge pain to the Petitioners. The lump-sum compensation awarded by the

hon’ble Labour Court, to the Petitioners, is depicted in tabular form herein

below:-

Sl. No. Name Award (INR)

1. Nepali Shah 3,00,000/-

2. Ram Gopal 2,80,000/-

3. Gosalwara 2,80,000/-

4. Ram Saran 2,80,000/-

5. Devi Prasad 2,70,000/-

6. Nar Singh Prasad 2,85,000/-

7. Joginder Kumar 2,85,000/-

8. Chanderpal 2,80,000/-

The Labour Court has also erred while deciding the issue of reinstatement

of the Petitioners. The Labour Court observed that the factory of the

management situated at Delhi is already closed down and considerable

time has elapsed since the cause of action. The Labour Court further

observed that in these days of rising prices, it was not possible to survive

without any job or work as such the workmen must have been doing some

job during this period in order to maintain themselves and their family,

therefore, the Petitioners can’t be reinstated. The Labour Court completely

ignored the settle position of law while deciding this issue as though it was

not viable to reinstate the Petitioners anymore considering the fact that

the factory is already closed, the Labour Court was at liberty to provide

compensation to the Petitioners for not being able to reinstate them. It is

settle position of law that in the cases of wrongful discharge or dismissal,

the normal rule is to award reinstatement yet the Labour Court has the

discretion to award reasonable and adequate compensation in lieu of

reinstatement. In other words, in appropriate cases, the Labour Court is

empowered to interfere in cases of discharge or dismissal of an employee

but in lieu of a right to claim reinstatement, the Labour Court can award

any other relief including the relief of awarding reasonable/adequate

compensation to the employee concerned depending on the fact situation.

However, the Labourt Court was unable appreciate the aforesaid legal

position and awarded such a meager amount of compensation by

disregarding the present legal position.

 LIST OF DATES & EVENTS

Before 01.08.1997 The Respondent company was not implementing

minimum wage and other statutory facilities and

allowances. The Petitioner along with other workers

had expressed their concern regarding the same to

the Respondent.

01.08.1997 A general checking was carried out at the factory by

the management of the Respondent.

05.08.1997, The Respondent suspended the Petitioners due to

09.08.1997 and annoyance in arbitrary and unjustified manner.

13.09.1997

28.01.1998 The Petitioner had sent a demand notice dated

25.01.1998 to the Respondent through Union for

reinstatement of the Petitioners in the factory with full

back wages.

February 1998- The Petitioner put their statement of claim before the

August 1998 Chief Conciliation Officer in terms of the demand

notice dated 25.01.1998. The Respondent had

appeared before the Conciliation Officer however the

conciliation efforts failed and the dispute was referred

to the appropriate Government. The Appropriate

government on being satisfied qua the existence of the

Industrial dispute referred the dispute to the Labour

Court for adjudication.

28.08.1998 The Labour Case was instituted before the Labour

Court, Dwarka, New Delhi in terms of Ref. No.

F.24(3411)/98-Lab./28378-82.

08.02.1999 A statement of claim came to be filed by the Petitioner

reiterating the claim made in notice dated 25.01.1998

 as well as the claim made before the Conciliation

officer.

28.08.2001 Vide order dated 28.08.2001, the Ld. Court framed an

issue as to, “Whether the Domestic enquiry held by

the management against the workmen concerned is

not fair and proper?”

March, 2006 An amended Written Statement on behalf of the

Respondent came to be filed where in it was

submitted that the factory at New Delhi has been

cosed down permanently w.e.f from 10.03.2006.

08.05.2013 After hearing the detailed arguments on the enquiry

issue, vide order dated 08.05.2013, it was held that

the enquiry conducted by the workmen was not in

accordance with the principles of natural justice and

fair play and held the same to be vitiated.

08.05.2013 The Respondent filed an application that it may be

granted an opportunity to prove the misconducted of

the workmen by adducing additional evidence and by

allowing the amended Written Statement filed in

March, 200 and the instant application, additional

issues were framed:-

1. As per the terms of reference vide Ref. No.

F.24(3411)/98-Lab./28378-82.

2. Whether the factory of the management at Delhi

had been closed down and as such the

manufacturing activities of the management

had come to an end permanently w.e.f.

10.03.2006 as alleged?

31.05.2018 Vide order dated 31.05.2018, the Ld. Labour court

had decided the additional issues and answered the

Issue no.2 to in affirmative whereas held that while

deciding Issue No. 1 held that the management had

failed to establish misconduct on the part of the

workmen and thus the workmen were entitled to get

relief. Relief was awarded as mentioned in synopsis

on page no.

The workmen are of the view that the lumpsum

amount awarded by the Ld. Labour Court after a

rigorous litigation struggle of almost twenty years is

comparatively very less and unjustified.

Being aggrieved and dissatisfied with the award

amount and order dated 31.05.2018 present petition

is filed under Article 227 of the Constitution of India

for enhancement of the award amount.

IN THE HIGH COURT OF DELHI

 AT NEW DELHI WRIT JURISDICTION

CIVIL WRIT PETITION OF 2018

IN THE MATTER OF:

Nepali Shah & Ors …Petitioner

Versus

M/s Continental Telepower Industries Ltd. …Respondent

PETITION UNDER ARTICLE 227 OF CONSTITUTION OF INDIA

ARISING OUT OF ORDER DATED 31.05.2018 DELIVERED BY

HON’BLE PRESIDING OFFICER LABOUR COURT, DWARKA, NEW

DELHI.

1. That the Petitioners prefer this petition against the order dated

31.05.2018 passed by hon’ble Presiding Officer Labour Court, Dwarka,

New Delhi in Industrial Dispute Reference No.

F.24(3411)/98-Lab./28378-82. The hon’ble Labour Court disposed of

the claims of the petitioners by awarding very nominal lump-sum

compensation despite of litigation of more than 20 years. The lump-

sum compensation awarded by the hon’ble Labour Court to the

Petitioners is depicted in tabular form herein below:-

Sl. No. Name Award (INR)

9. Nepali Shah 3,00,000/-

10. Ram Gopal 2,80,000/-

11. Gosalwara 2,80,000/-

12. Ram Saran 2,80,000/-

13. Devi Prasad 2,70,000/-

14. Nar Singh Prasad 2,85,000/-

 15. Joginder Kumar 2,85,000/-

16. Chanderpal 2,80,000/-

2. That the Hon’ble Labour Court also erred while deciding the issue of

reinstatement of the Petitioners. The Court observed that the factory of

the management situated at Delhi is already closed down and

considerable time has elapsed since the cause of action. The Court

further observed that in these days of rising prices, it was not possible

to survive without any job or work as such the workmen must have

been doing some job during this period in order to maintain themselves

and their family, therefore, the Petitioners can’t be reinstated. The

Court completely ignored the settle position of law while deciding this

issue as though it was not viable to reinstate the Petitioners anymore

considering the fact that the factory is already closed, however, the

Labour Court was at liberty to provide compensation to the Petitioners

for not being able to reinstate them. A certified copy of order dated

31.05.2018 is enclosed herewith as Annexure-A1.

3. Hence, the following legal issues arising out of the present Writ

Petition:-

a. Whether the compensation awarded by the Labour Court is

inadequate and should be enhanced for the illegal and unjustified

termination of the Petitioners?

b. Whether the Labour Court had failed to appreciate the long litigation

battle undertaken by the Petitioner while deciding the amount of

compensation?

c. Whether the relief of reinstatement can be alternated with an

increased lump-sum compensation?

 d. Whether the Labour Court erred by not giving adequate

compensation while it decided not to reinstate the Petitioners in the

factory?

FACTS LEADING TO THE FILING OF THE PRESNT APPEAL ARE AS

FOLLOWING

A. That the Petitioners were employed in the factory of the Respondent

since long period of time and had given their flesh and blood to

prosperity of the Respondent. The Petitioners had worked with full

sincerity and dignity and had never indulged in any such activity

that may incur loss to the Respondent Company. The Petitioners

never gave any opportunity to the Respondent to complain about

their behavior and always followed the prescribed code of conduct.

The particulars of the petitioner in the company as in year 1997 is

tabled below:-

Name Date Of Pay (INR) Post

joining

Nepali Shah 1990 2011/- Operator

Chanderpal 1990 1784/- Helper

Ram Gopal Sharma 1992 1784/- Operator

Joginder Kumar 1987 1943/- Operator

Narsingh Prasad 1991 1950/- Operator

Ram Saran 1991 1784/- Operator

Gosalwara 1991 1784/- Helper

Gopi Chand 1987 1784/- Helper

Devi Prasad 1989 1677/- Helper

Laksman 1993 1600/- Helper

B. That the Respondent was not implementing minimum wages and

other statutory facilities in the interest of the Petitioners as

prescribed. The Petitioners had shown their concern to the

management and had demanded for implementation of the same.

C. That the Respondent had carried out a general checking in the

factory on 01.08.1997 and due to annoyance had suspended the

Petitioners on 05.08.1997, 08.08.1997 and 13.09.1997 respectively

in an arbitrary manner violating the provisions of the Industrial

Disputes Act, 1947.

D. That the Petitioners were being paid half of the wages as suspension

allowance initially and they had been also signing daily attendance

at factory gate from date of suspension. The Petitioners after

completion of three months of suspension had applied to

management for reinstatement with back wages. However, the

Petitioners were neither reinstated nor were paid any suspension

allowance for the month of December despite regularly making

attendance at factory gates.

E. That the Petitioners sent a demand notice dated 25.01.1998 to the

Respondent through Union for reinstatement of the Petitioners in

the factory with full back wages. However, the Petitioners did not

receive any reply of the same.

F. That the Petitioner after realizing that the Respondent is not paying

any heed to the grievances of the Petitioners, put their statement of

claim before the Chief Conciliation Officer in terms of the demand

notice dated 25.01.1998. The Respondent had appeared before the

Conciliation Officer but due to the adamant behavior of the

representatives of the Respondent, the conciliation efforts failed and

the dispute was referred to the appropriate Government. The

Appropriate government on being satisfied qua the existence of the

 Industrial dispute referred the dispute to the Labour Court for

adjudication.

G. That the labour case was instituted before the Labour Court,

Dwarka, New Delhi in terms of Ref. No. F.24(3411)/98-Lab./28378-

82. The said reference is as under “Whether the services of S/sh.

Nepali Shah, Chandrapal Sharma, Ram Gopal Sharma,

Joginder Kumar, Narsingh Prasad, Ram Saran, Gosalwara,

Gopi Chand, Devi Prasad and Lakshman have been terminated

illegally and/or unjustifiably by the management, and if so, to

what relief are they entitled and what directions are necessary

in this respect?”

H. That a statement of claim came to be filed by the Petitioners before

the Ld. Labour Court on 08.02.1999. In the claim, the Petitioners

stated that the termination of the Petitioners by the management

amounted to arbitrary and unjustified termination of the services of

the workmen and was illegal and against the provisions of the

Industrial Disputes Act, 1947. The Petitioners further demanded to

be reinstated with full back wages and continuity of their services.

The workmen also claimed that they had sent a demand notice

dated 25.01.1998 through registered AD but no reply was received.

I. That thereafter a Written Statement came to be filed by the

Respondent in year 2001 contesting and denying the claims of the

Petitioners. In the Written Statement, the Respondent denied that it

was not giving minimum wages and other legal facilities to the

Petitioners and the Respondents suspended the Petitioners due to

annoyance. It was further stated by the Respondent that the

services of the Petitioners were terminated as per the provisions of

law and principles of natural justice. The Respondent denied that

they received any demand letter from the workmen. It was also
 denied that the Petitioners were unemployed and that they were

entitled for any relief of reinstatement with full back wages.

J. That an amended Written Statement also came to be filed by the

Respondent in March 2006, where in the Respondents submitted

that the Factory of the Respondent at New Delhi have been closed

down permanently w.e.f 10.03.2006

K. That on pleadings of both the Petitioners and the Respondent, vide

order dated 28.08.2001, the following issue was framed:

Whether the domestic enquiry held by the management against

the workmen concerned is not fair and proper?

No other issue was framed at that time and the case was fixed for

workmen evidence.

L. That in support of their case, out of the workmen (as mentioned in

the reference) only eight workmen namely Sh. Nepali Shah, Ram

Gopal, Gosalwara, Ram Saran, Devi Prasad, Nar Singh Prasad,

Joginder Kumar and Chander Pal appeared in the workmen

evidence on the enquiry issue, tendered their affidavits by way of

evidence. In their affidavits by way of evidence, they had reiterated

the contents of their statement of claim. Further, the evidence on

behalf of the workmen on enquiry issue was closed on record.

M. That the Respondents had led two evidence on the enquiry issue

namely Sh. N.K. Bansal, Advocate, Enquiry officer of the Respondent

and Sh. R. K.Nayyar, Commercial officer of the Respondent. The

Respondent had closed its evidence and the case was fixed for

arguments.

N. That after hearing the detailed arguments on the enquiry issue, the

Ld. Labor court vide order dated 08.05.2013 held that the enquiry

conducted by the Respondent qua the Petitioners in respect of the

charge sheets dated 15.09.1997 was not in accordance with the

 principles of natural justice and held the same to be vitiated on

record. The ld. Labour Court had also observed that an application

had been moved by the respondent to the effect that in case the

enquiry conducted by the management on the allegation of

misconduct against the workmen stood vitiated, on record then it

was be granted an opportunity to prove the misconduct of the

workmen by way of adducing additional evidence in this regard.

After hearing arguments at length on the aforesaid application, the

application was allowed and the Labour Court observed that it had

been seen from the record that as per the claim of the Respondent

made in the Amended Written Statement, the factory of the

Respondent had been permanently closed w.e.f. 10.03.2006.

O. Therefore, the Labour Court in light of the aforesaid application and

decision in the first issue, framed the following additional issues:-

1. Whether the services of Sh. Nepali Shah, Chandrapal

Sharma, Ram Gopal Sharma, Joginder Kumar, Narsingh

Prasad, Ram Saran, Gosalwara, Gopi Chand, Devi Prasad

and Lakshman have been terminated illegally and/or

unjustifiably by the management, and if so, to what relief

are they entitled and what directions are necessary in this

respect?.

2. Whether the factory of the management at Delhi had been

closed down and as such the manufacturing activities of the

management had come to an end permanently w.e.f.

10.03.2006 as alleged?

P. That in advancement of evidences in the Issue No. 2, the

Respondent had examined the witnesses from PF, ESI and factory

department and brought on record various documents to prove the

closure of the establishment. In the light of the evidence advanced

 by the Respondent, the Issue no. 2 was decided in favor of the

Respondent.

Q. That while deciding the Issue no. 1, the Ld. Labour Court had

observed that no material on record could be brought by the

Respondent to corroborate the testimony of the witnesses of the

Respondent in relation to Issue No. 1 despite of the fact that the

Respondent were given ample opportunity to bring evidences on

record to the effect. It was held that the management had failed to

establish the factum of misconduct on the part of the workmen and

subsequently in the light of the fact that the inquiry conducted by

the Respondent stood vitiated and it can’t be said that the services

of the workmen were terminated in legal and justified manner and

as such the Petitioners were entitled to relief.

R. That the above said decisions on Issue No.1 and Issue No. 2 were

made by the Ld. Labour Court on 31.05.2018 vide an award dated

the same day. While deciding the relief entitled to the workmen, the

Ld. Labour Court was of the view that the ends of justice would be

met if a lump-sum award is granted to the workmen and accordingly

an award was made by the Ld. Labour Court depicted in Paragraph

A of the instant petition which may be read as part of the instant

paragraph and is not reiterated here for the sake of brevity.

S. That the Petitioners are of the view that the lump-sum amount

awarded by the Ld. Labour Court after a rigorous litigation struggle

of almost twenty years is comparatively very less and unjustified.

The Labour Court can't be obdurate to the hard realities of life. In

matters of this nature, a humane and pragmatic approach to the

various factors, including the steep escalation in prices in the

commodity market, the cost of living, the cost of education of

children etc. is required. However, the Labour Court completely

 ignored all of the aforesaid circumstances despite of the fact that the

Hon’ble Apex Court has already settled the law regarding the issue

of compensation and the same has been affirmed in plethora of

cases including in case of “Mahboob Deepak vs Nagar Panchayat

Gajraula & Anr. (2009)” wherein the Supreme Court observed, “It

is now well settled by a catena of decisions of this Court that in a

situation of this nature instead and in place of directing reinstatement

with full back wages, the workmen should be granted adequate

monetary compensation.”

T. That the aforesaid proposition is also followed by the Hon’ble Delhi

High Court in the case of “Sh. Ram Singh (deceased) through

legal representatives vs. The Presiding Officer, Labour Court

No.VII, Delhi & Anr. (2010)” wherein the Court held, “In my opinion

compensation in lieu of back wages and reinstatement should

represent the saving that accrues to the employer/management by

not having to pay the back wages and not having to reinstate the

workman…..”

U. Therefore, keeping in view the peculiar facts and circumstances of

this case, in our view, it would be in the interest of justice, to

enhance the compensation

V. That being aggrieved and dissatisfied with the award amount and

order dated 31.05.2018, the present petition is filed under Article

227 of the Constitution of India for enhancement of the award

amount.

GROUNDS

1. Because Hon’ble Labour Court failed to appreciate the fact that the

legal battle undertaken by the Petitioner lasted for twenty years and in

all these twenty years the petitioners have given their time, money,

energy and many other resources and have finally come out as the
 certificate holder. After such a long battle and after being declared a

victor, the award amount granted by the Ld. Labour Court is very

meager and also a mockery of the struggle undertaken by the

Petitioners.

2. Because the award amount granted by the Ld. Labour Court is very

less and unjustified given the fact that the Petitioners had given their

flesh and blood to the Respondent for such a long period of over 7-10

years and all of a sudden the Petitioners were suspended and denied all

the allowances in most unjustified and illegal manner.

3. Because the Petitioners were entitled for compensation in place of

reinstatement as the termination of the Petitioners by the Respondent

has been held illegal.

4. Because the Ld. Labour Court has observed that in these days of rising

prices it is impossible to survive without a job to maintain oneself and

the family but has failed to take note of the fact that the alternative job

that may have been taken by the Petitioners arose out of compulsion

and the job that might have been undertaken would not have been as

dignified and well paying as the job of the Respondent which the

Petitioners had to forgo because of the unjustified and illegal act of the

Respondent.
 PRAYER

In view of the submissions made herein above, it is most respectfully

prayed that this Hon’ble Court may kindly be pleased to:-

1. Enhance the lump-sum compensation granted by the Labour Court in

lieu of reinstatement of the Petitioners to the tune of amount depicted

below in tabular form:-

Sl. No. Name Award (INR)

1. Nepali Shah 25,00,000/-

2. Ram Gopal 24,00,000/-

3. Gosalwara 24,00,000/-

4. Ram Saran 24,00,000/-

5. Devi Prasad 23,00,000/-

6. Nar Singh Prasad 24,00,000/-

7. Joginder Kumar 24,00,000/-

8. Chanderpal 24,00,000/-

2. The Respondent to pay Rs. 1,00,000/- as litigation cost.

3. The Respondent to pay 2,00,000 to each Petitioners for mental agony

and harassment.

4. Pass any other order(s) as may be deemed fit and proper in the facts

and circumstances of the present case.

Petitioner

Filed Through:

New Delhi

Suraj Kumar Singh

Dated: 10.10.2018 SKS & Partners

Advocates & Legal Consultant

Chamber no. 565, Saket Court Complex