MANAGEMENT OF NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs SMT. VINITA

2021-01-12 Information

LPA 187/2020 & LPA 188/2020 P age 1 of 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 12 th January, 2021.

+ LPA 187/2020 & CMs No.17266/2020 (for stay of order dated
24 th February, 2020), 17271/2020 (for permission to fil e
additional documents), 17278/2020 (for stay of orde r dated 22 nd
June, 2020), 33520/2020 (for stay of order dated 2 8 th October,
2020) & 628/2021 (for stay of order dated 10 th December, 2020).

MANAGEMENT OF NATIONAL HIGHWAYS
AUTHORITY OF INDIA ….. Appellant
Through: Mr. Dayan Krishnan, Sr. Adv. with
Ankur Mittal, Ms. Aishwarya Pandey
and Mr. Abhay Gupta, Advs.
Versus
VINITA ….. Respondent
Through: Mr. Sanjay Ghose, Mr. Rajiv
Agarwal, Ms. Meghna De, Ms. L.
Gangmei and Mr. N. Bhushan, Advs.
AND

+ LPA 188/2020 & CMs No.17301/2020 (for stay of order dated
24 th February, 2020), 17306/2020 (for permission to fil e
additional documents), 17307/2020 (for stay of orde r dated 22 nd
June, 2020), 32909/2020 (for stay of order dated 2 8 th October,
2020) & 1148/2021 (for stay of order dated 10 th December, 2020).

2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 2 of 17
CORAM:
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MR. JUSTICE SANJEEV NARULA

[VIA VIDEO CONFERENCING]
RAJIV SAHAI ENDLAW, J .
1. The appeals impugn the common judgment dated 24 th February, 2020
of the Single Judge, allowing W.P.(C) No.2019/2020 preferred by the
respondent/workman and dismissing W.P.(C) No.1341/2 020 preferred by
the appellant National Highways Authority of India (NHAI). The
respondent/workman as well as the appellant NHAI ha d preferred the writ
petitions aforesaid with respect to the Award dated 12 th February, 2019 of
the Central Government Industrial Tribunal (CGIT)-c um-Labour Court in
ID No.05/2015, directing the appellant NHAI to rein state the
respondent/workman with 60% back wages. The appella nt NHAI in its writ
petition impugned the Award, on the count of reinst atement as well as on
the count of Award of 60% back wages and the respon dent/workman in her
writ petition, impugned non-grant of 100% back wage s. As aforesaid, the
Single Judge did not find any error, required to be corrected in judicial
review, in the order of the CGIT-cum-Labour Court g ranting the relief of
reinstatement with 60% back wages, in favour of the respondent/workman
and rather found error in the back wages being conf ined to 60% only and
has modified the Award of the CGIT-cum-Labour Court , by awarding
100% full back wages to the respondent/workman and has further directed
the same to be paid along with interest at 9% there on from the date when
the back wages fell due till the date of payment.
2. The appeals came up first before this Court on 3 1 st July, 2020, when
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 3 of 17
notice thereof was ordered to be issued; vide order dated 8th January, 2021,
on the application of the appellant NHAI, the Recov ery Certificate issued in
enforcement of the Award of the CGIT-cum-Labour Cou rt against the
appellant NHAI was stayed.
3. The CGIT-cum-Labour Court, in its Award dated 12th February, 2019
in ID No.05/2015, on the following reference:-
“Whether termination of Smt. Vinita w/o Shri.
Shekhar Kumar by the Management of National
Highway Authority of India w.e.f. 25.01.2012
without complying with the provisions of law is jus t,
fair and legal? If not, what relief the workman
concerned is entitled to?” ,

has found/observed that, (i) the respondent/workma n joined the
employment of the appellant NHAI, as an Accountant, w.e.f. 5 th January,
2007, on contract basis, for two years, in response to the vacancy advertised
by the appellant NHAI; (ii) the contract of employm ent of the
respondent/workman was extended by the appellant NH AI from time to
time; (iii) the respondent/workman was working in t he Port Connectivity
Division of the appellant NHAI, from 2007 till Janu ary, 2012; (iv) the
respondent/workman took maternity leave w.e.f. 17 th January, 2011 to 1 st
December, 2011 and returned to duty on 2 nd December, 2011; (v) the
respondent/workman was issued a Memorandum dated 2 nd December,
2011, of unauthorised absence from duty; (vi) the r espondent/workman sent
a reply dated 7 th December, 2011 thereto; (vii) the appellant NHAI s erved
another Memorandum dated 29 th December, 2011 on the
respondent/workman, of absenteeism for 40 days in t he year 2010 and 49
days in the year 2011; (vii) the respondent/workman sent a detailed reply
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 4 of 17
dated 6 th January, 2012 thereto also; (viii) without disposi ng of the
aforesaid memorandums, the appellant NHAI, vide let ter dated 25 th
January, 2012 terminated the services of the respon dent/workman; (ix) it
was the defence of the appellant NHAI that the resp ondent/workman was
appointed for specific period of two years from 5 th January, 2007 to 4 th
January, 2009 and which period was extended for fur ther two years up to 4 th
January, 2011 and thereafter the contract of employ ment of the
respondent/workman was not extended or renewed; and , (x) it was also the
defence of the appellant NHAI that the respondent/w orkman was a habitual
absentee from duty without intimation and had remai ned unauthorisedly
absent from duty, for 76 days in the year 2009, 13 5 days in the year 2010
and 50 days in the year 2011 and which conduct of t he
respondent/workman showed that she was not interest ed in the employment
and thus the appellant NHAI did not extend her cont ract.
4. The CGIT-cum-Labour Court in its Award dated 12 th February, 2019,
on the basis of pleadings and evidence led, has hel d/reasoned that, (i)
though the appellant NHAI appointed the respondent/ workman on contract
basis, but after being subjected to written test an d interview held on All
India level; (ii) the respondent/workman worked wit h the appellant NHAI
for about five years; (iii) as such the relationshi p of employer-employee
between the appellant NHAI and the respondent/workm an stood proved and
in any case was not in dispute; (iv) the argument o f the appellant NHAI that
non-renewal/non-extension of contract of employment after expiry of the
specified period does not amount to retrenchment un der Section 2(oo)(bb)
of the Industrial Disputes Act, 1947 (ID Act) did n ot have any merit
because the contract of employment of the responden t/workman though
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 5 of 17
was for a long period, but did not show that it was for any specific project
or scheme; (v) no evidence was adduced by the appel lant NHAI to show
that the employment of the respondent/workman, afte r holding test,
interview and medical test on All India basis, was for any specific project or
scheme of the appellant NHAI; (vi) it was also not the case of the appellant
NHAI that the respondent/workman was not in its emp loyment during the
year 2011; (vii) office orders dated 23 rd February, 2011 and 15 th March,
2011 of the appellant NHAI showed that the responde nt/workman was re-
engaged on contract basis for a period of two years ; (viii) in case the
appellant NHAI wanted to discontinue the contractua l service of the
respondent/workman after 4 th January, 2011, there was no occasion for the
appellant NHAI to issue office orders dated 23 rd February/15 th March,
2011; (ix) the services of the respondent/workman h ad been
disengaged/terminated, only vide letter dated 25 th January, 2012, showing
that the respondent/workman continued to work beyon d 4 th January, 2011,
till 25 th January, 2012 when order of termination was issued ; (x) thus the
contention of the appellant NHAI that the contract of employment of the
respondent/workman was not extended beyond 4 th January, 2011 and non-
renewal /non-extension of contract of employment af ter expiry of the
specified period does not amount to retrenchment un der Section 2(oo)(bb)
of the ID Act is not tenable because the respondent /workman had continued
to work for the appellant NHAI even after expiry of the contract and till
termination on 25 th January, 2012; (xi) there was no explanation that if the
service contract of the respondent/workman had expi red on 4 th January,
2011 and was not renewable, why the appellant NHAI issued office orders
dated 23 rd February/15 th March, 2011 and why the maternity leave for 180
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 6 of 17
days w.e.f. 17 th January, 2011 and earned leave for 90 days thereaf ter was
granted to the respondent/workman; (xii) even if th e respondent/workman
was unauthorisedly absent from duty from 49 days in the year 2011, though
not proved, it was the duty of the appellant NHAI t o issue proper charge
sheet and hold disciplinary/domestic enquiry prior to inflicting punishment
of termination from service; (xiii) the only explan ation of the witness of the
appellant NHAI was that since the respondent/workma n was a long term
contract employee, no charge sheet and no enquiry w as necessary; (xiv)
provisions of Section 25F of the ID Act had also no t been complied with by
the appellant NHAI in the matter of termination of employment of the
respondent/workman; (xv) the respondent/workman was performing duty at
a post of regular and perennial nature; (xvi) the respondent/workman was
thus entitled to reinstatement into service on the same post, with 60% back
wages, inasmuch as the termination by the appellant NHAI of the services
of the respondent/workman was per se illegal and it was the case of the
respondent/workman that she was not gainfully emplo yed anywhere since
her termination on 25th January, 2012 by the appellant NHAI and the
appellant NHAI had not rebutted the same; and, (xvi i) since no
disciplinary/domestic enquiry was held prior to inf licting the punishment of
termination of service on the respondent/workman, i t was a case of illegal
retrenchment within the meaning of Section 25F of t he ID Act.
5. The Single Judge of this Court, dealing with the challenge to the
aforesaid order of the CGIT-cum-Labour Court by bot h the parties i.e. the
appellant NHAI as well as the respondent/workman, a s aforesaid, has
found/observed/held that, (i) the reasoning given b y the CGIT-cum-Labour
Court did not call for any interference with the di rection insofar as of
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 7 of 17
reinstatement; (ii) however the issue for considera tion was whether
quantum of back wages awarded was adequate or on th e higher side or
needed to be enhanced; (iii) the contention of the appellant NHAI was that
a skilled workman like the respondent ought to have looked for another
employment and would have ordinarily found some voc ation and thus the
Award of 60% back wages was on the higher side and should be reduced to
nothing more than 25%; (iv) per contra, it was the contention of the counsel
for the respondent/workman that the respondent/work man had sought
payment of complete wages from the date of terminat ion as the
respondent/workman was not employed elsewhere; (v) though the
respondent/workman had deposed so in her evidence b ut was not cross
examined on the said aspect; (vi) if the appellant NHAI disputed the claim
of the respondent/workman of not being employed els ewhere, the appellant
NHAI ought to have produced evidence of the respond ent/workman being
gainfully employed elsewhere and which the appellan t NHAI had not done;
(vii) the appellant NHAI knew that the respondent/w orkman had a
miscarriage in the year 2009 and was blessed with a baby in the year 2011;
(viii) the new born baby of the respondent/workman had a medical
condition which required the respondent/workman to stay constantly with
her baby for several months and which requirement c ould not be disputed;
(ix) the appellant NHAI, if had any doubt in this r egard ought to have made
enquiry inasmuch as the respondent/workman had work ed with them for
nearly five years; (x) humane approach of the appel lant NHAI was however
found wanting; (xi) the claim of the appellant NHAI of the
respondent/workman having not reported back for dut y stood belied from
the reply of the appellant NHAI before the Concilia tion Officer and in
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 8 of 17
which reply the appellant NHAI had admitted that th ey were still
considering whether to allow the respondent/workman to join and resume
her services; (xii) owing to such conduct of the ap pellant NHAI, the
respondent/workman could not resume service with th e appellant NHAI or
take up employment elsewhere; and, (xiii) “Since th e petitioner-workman
had been deprived of her due remuneration, the moni es shall be paid
alongwith interest @9% when the said monies became due. The monies
shall be paid to the workman-claimant within four w eeks from the date of
receipt of a copy of this order.”
6. We have heard the senior counsel for the appella nt NHAI.
7. The senior counsel for the appellant NHAI has ar gued that, (i) the
CGIT-cum-Labour Court erroneously held that the act ion of the appellant
NHAI of disengaging/terminating the services of the respondent/workman
amounted to retrenchment within the meaning of Sect ion 25F of the ID Act;
this finding was returned without considering Secti on 2(oo)(bb) thereof; (ii)
the Single Judge did not go into the said aspect at all and proceeded to
decide the writ petitions, not on law but on equity ; (iii) Section 25F of the
ID Act provides that no workman employed in any ind ustry, who has been
in continuous service for not less than one year un der an employer, shall be
retrenched by that employer until (a) the workman h as been given one
month’s notice in writing indicating the reasons fo r retrenchment or the
workman has been paid wages in lieu of such notice; (b) the workman has
been paid retrenchment compensation equivalent to 1 5 days average pay for
every completed year of continuous service; and, (c ) notice in the
prescribed manner is served on the appropriate Gove rnment or such
authority as notified; (iv) however for the action to qualify as retrenchment,
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 9 of 17
the definition of retrenchment in Section 2(oo) of the ID Act has to be seen
and which defines retrenchment as meaning “the term ination by the
employer of the service of a workman for any reason whatsoever, otherwise
than as a punishment inflicted by way of disciplina ry action”; (v) however
Section 2(oo) further proceeds to provide in clause (bb) thereof that
“termination of the service of the workman as a res ult of the non-renewal of
the contract of employment between the employer and the workman
concerned on its expiry or of such contract being t erminated under a
stipulation in that behalf contained therein” shall not be included within the
meaning of retrenchment; (vi) in the present case t he termination of the
services of the respondent/workman was a result of the non-renewal of the
contract of employment between the appellant NHAI a nd the
respondent/workman, on its expiry and thus the same did not qualify as
retrenchment; (vii) that the Supreme Court, in Karnataka Handloom
Development Corporation Ltd. v. Mahadeva Laxman Rav al (2006) 13
SCC 15 has extended the principles of Secy., State of Karnataka v.
Umadevi (3) (2006) 4 SCC 1 to Industrial Law also; (viii) ther e can be thus
no regularisation of contractual employees under th e Industrial Law also;
(ix) the order of the CGIT-cum-Labour Court affirme d by the Single Judge,
of reinstatement of the respondent/workman in the e mployment of the
appellant NHAI will thus amount to back door entry of the
respondent/workman in the service of the appellant NHAI and which is
prohibited/barred by Umadevi (3) supra; (x) that the Labour Court
committed an error in holding the present case as o ne of retrenchment and
the Single Judge did not go into the said legal iss ue and proceeded to decide
the matter taking a humanitarian approach only and which is not
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 10 of 17
permissible in law; (xi) a perusal of the letter da ted 5 th January, 2007 of the
appellant NHAI to the respondent/workman shows the appointment to be
purely contractual; (xii) though while renewing the said contract, the
proforma as used for renewal of contractual employe es for a particular
project was used but it is not the case of the appe llant NHAI that the
respondent/workman was employed as an Accountant fo r a particular
project; (xiii) though the appellant NHAI vide its letter dated 4 th May, 2012
in response to the representation of the respondent /workman had called her
to discuss the matter of her re-engagement but the respondent/workman
instead went to the Labour Court; (xiv) the respond ent/workman in her
claim petition before the CGIT-cum-Labour Court exp ressly admitted that
her engagement with the appellant NHAI was on cont ract basis though she
claimed the work for which she was engaged to be of permanent nature;
and, (xv) the CGIT-cum Labour Court has erred in ho lding that because the
respondent/workman continued to work for appellant NHAI inspite of
expiry of the term of her contract, without renewal thereof she was entitled
to be absorbed and which is not a correct propositi on in law and the Single
Judge has failed to even deal with the said aspect.
8. At this stage we interrupted the senior counsel for the appellant
NHAI and stated that there was no direction either of the CGIT-cum-
Labour Court or of the Single Judge for regularisat ion of the services of the
respondent/workman with the appellant NHAI and furt her reminded that in
law, reinstatement when ordered is at the same posi tion at which the
workman was immediately prior to termination.
9. The counsel for the respondent/workman also fair ly states that it is
not even the case of the respondent/workman that he r services with the
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 11 of 17
appellant NHAI have been regularised or are to be r egularised and the
respondent/workman admits that the reinstatement of the
respondent/workman with the appellant NHAI will be on contractual basis.
10. The senior counsel for the appellant NHAI, cont inuing his
arguments, further contended that, (i) the reliance by the counsel for the
respondent/workman on Bhuvnesh Kumar Dwivedi v. Hindalco Industries
Ltd. (2014) 11 SCC 85 in his compilation of judgments i s misconceived
inasmuch as clause (bb) to Section 2(oo) of the ID Act as exists qua Delhi
does not exist in Uttar Pradesh to which State the said judgment pertains;
and, (ii) the appellant NHAI, in its writ petition in paragraph 10 and in
Ground F had expressly raised the argument as is ra ised before this Court,
of owing to clause (bb) of Section 2(oo) of the ID Act, the case being not
covered by Section 25F of the ID Act.
11. We have however enquired from the senior counse l for the appellant
NHAI, whether not Umadevi (3) supra was in the context of public
employment and how the principles thereof can be at tracted to an industry.
We have further enquired that even though the appel lant NHAI is an
undertaking of the Government of India, whether not for the principles of
Umadevi (3) supra to apply, existence of a procedure for recrui tment by a
public notice, giving equal opportunity to all, is necessary, for it to be said
that through the medium of contractual employment, employment is being
granted without undertaking the said procedure. Fro m a perusal of the
record, it does not appear that any such issue was raised before the CGIT-
cum-Labour Court or any material was placed on reco rd.
12. The senior counsel for the appellant NHAI fairl y states that there is
no such material on record and he has not examined the matter from the
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 12 of 17
said aspect.
13. As far as reference to Karnataka Handloom Development
Corporation Ltd. supra is concerned, we find the same to be referring to
Umadevi (3) supra only while recording the submission of the co unsels for
the appellant therein and do not find the Supreme C ourt to have in its
judgment expressed any view or granted relief in th at case by referring to
Umadevi (3) supra. Reliance on the said judgment thus is not found
apposite.
14. The counsel for the respondent/workman has argu ed that, (i)
Umadevi (3) supra was concerned with regularisation; (ii) the Supreme
Court in Maharashtra State Road Transport Corporation v. Cas teribe
Rajya Parivahan Karmchari Sanghatana (2009) 8 SCC 556 has examined
the differences between Umadevi (3) and industrial law; (iii) the witness of
the appellant NHAI, in cross examination admitted t hat the recruitment of
the respondent/workman was not ad hoc but through a recruitment process,
on a All India basis; (iv) it was also the claim of the respondent/workman
that while the respondent/workman had been dismisse d, another workman,
also contractually engaged as an Accountant after t he appointment of the
respondent/workman, was being continued and which w as also admitted by
the witness of the appellant NHAI – this action of the appellant NHAI was
in violation of Section 25G of the ID Act; (v) in f act the appellant NHAI
has also regularised the service of the said junior of the
respondent/workman; (vi) it was the categorical ple ading and evidence of
the respondent/workman before the CGIT-cum-Labour C ourt that she was
unemployed and in her cross examination by the appe llant NHAI no
suggestion even was put to her that she was gainful ly employed; and, (vii) it
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 13 of 17
was held by the Division Bench of this Court in Delhi Cantonment Board
v. Central Govt. Industrial Tribunal (2006) 129 DLT 610 (DB) that there
is no distinction between a permanent employee and a temporary employee
and termination of service without complying with provision of Section
25F of the ID Act is illegal.
15. The senior counsel for the appellant NHAI in hi s rejoinder arguments
has drawn attention to Karnataka Handloom Development Corporation
Limited supra to contend that all the conditions specified therein of
contractual employment i.e. the employment being fo r a specific time,
being liable to be terminated and such terms having been brought to the
notice of the employee, are satisfied in the presen t case. He has further
contended that clause (bb) to Section 2(oo) was ins erted only to satisfy the
temporary requirements and has contended that the s aid Section 2(oo)
controls Section 25F of the ID Act.
16. We have enquired from the senior counsel for th e appellant NHAI,
whether not, if his argument were to be accepted, t he same will sound the
death knell for the ID Act to the extent provides p rotection to the workman
against whimsical termination by the employers. We have enquired,
whether one clause in the statute can be permitted to defeat the objective for
which the statute was enacted and the substantive p rovisions of the statute.
We have further enquired, whether not interpreting Section 2(oo)(bb) as
suggested, would lead to the employers engaging all workmen so i.e. by
providing the employment to be temporary and contra ctual and renewing
the same from time to time, each time temporarily a nd for specified period,
and leaving it to the whim and fancy of the employe rs to whenever desire,
get rid of any workman, merely by not renewing the contract.
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 14 of 17
17. In our view, for a case to be brought under cla use (bb) of Section
2(oo) it is incumbent on the employer to plead and prove that the work for
doing/execution of which the workman was engaged wa s not of a
permanent nature but the need wherefor had arisen i n the course of carrying
on business/running the industry and for a certain contingency and for a
short period and that the said need/requirement end ed after the said period
or shortly thereafter.
18. The senior counsel for the appellant NHAI conte nds that neither
clause (bb) of Section 2(oo) uses the work ‘tempora ry’ nor does Karnataka
Handloom Development Corporation Limited supra lay down the same as
a condition while dealing with the said clause.
19. However in our view Section 2(oo)(bb) cannot be read in isolation.
Section 2(s) defines ‘workman’ as meaning any perso n employed in any
industry to do any manual, unskilled, skilled, tech nical, operational, clerical
or supervisory work for hire or reward, whether the terms of employment
be express or implied. We emphasise, that the word ‘permanent’ is not used
in Section 2(s) also, while defining workman. Thus anyone hired to do any
work qualifies as a workman.
20. As far as the reliance by the senior counsel fo r the appellant NHAI
on Karnataka Handloom Development Corporation Limited is concerned,
reliance on what is observed/held therein without a dverting to the facts, can
be misleading. Supreme Court therein was concerned with engagement of
the respondent therein by the appellant therein, a Public Sector Enterprise
established by the State Government to promote and assist growth and
development of handloom industry outside the cooper ative sector in the
State; the respondent was appointed for various spe lls of fixed periods, on a
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 15 of 17
fixed honorarium, as a expert weaver, to train the weavers in the
unorganised sector and was lastly engaged specifica lly under a welfare
programme of the State Government to train and reh abilitate the weavers;
the respondent otherwise, along with his father and wife was independently
doing weaving business and having a business relati onship with the
appellant. It was in these facts that the Supreme C ourt held that the
respondent was not a workman within the meaning of Section 25F of the
Act.
21. Reference in this context may also be made to ( A) State of
Rajasthan v. Rameshwar Lal Gahlot (1996) 1 SCC 595; (B)
Municipal Council, Samarala v. Raj Kumar (2006) 3 SCC 81; and, (C)
Haryana State Agricultural Marketing Board Vs. Subh ash Chand (2006)
2 SCC 794, in all of which though Section 2(oo)(bb) was invoked but in the
facts of (A) where appointment was for a fixed peri od or till a regularly
selected candidate assumed office; (B) where appoin tment was made
without following the statutory provisions for appo intment and for the
period when one post was vacant and two other emplo yees were on leave
and public works were suffering; and, (C) where app ointment was made
during paddy season. Rather, in Rameshwar Lal Gahlot supra it was
expressly held that if it is found that power under clause (bb) of Section
2(oo) was misused or vitiated by its mala fide exer cise, the employer would
not be entitled to invoke Section 2(oo)(bb).
22. In the present case the appellant NHAI failed t o make out a case as is
being urged before this Court, before the CGIT-cum- Labour Court and the
burden of proof whereof, as per S.M. Nilajkar Vs. Telecom District
Manager, Karnataka (2003) 4 SCC 27 was on the appellant NHAI. The
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 16 of 17
factual finding of the CGIT-cum-Labour Court and wh ich is not under
challenge is, that respondent/workman had continued to work for the
appellant NHAI even after expiry of the contract an d till termination on 25 th
January, 2012. Thus, compliance with Section 25F an d 25G of the ID Act
was/is essential and the respondent/workman is not covered by Section
2(oo)(bb) of the Act.
23. Reliance by the counsel for the respondent/work man on
Maharashtra State Road Transport Corporation supra, in response to the
argument of the senior counsel for the appellant NH AI, is also apposite.
Though the Supreme Court therein was not concerned with Section
2(oo)(bb) supra but held that the power of Industri al and Labour Courts to
take affirmative action in case of unfair labour pr actice and to order
regularisation /permanency to employees affected by unfair labour practice
is not affected by Umadevi (3) because the same was not for consideration
therein and because the said judgment restricts pow ers of Supreme Court
under Article 32 of the Constitution of India and H igh Courts under Article
226 of the Constitution of India to issue directions for regularisation in
matters of public employment.
24. We are thus unable to find any merit in the cha llenge by the appellant
NHAI to the direction of the CGIT-cum-Labour Court for reinstatement of
the respondent/workman and which the counsel for th e
respondent/workman has fairly agreed, would be as i mmediately before
termination.
25. We however find that the Single Judge has not g iven any reason for
interfering with the discretion exercised by the CG IT-cum-Labour Court in
restricting the Award of back wages to 60% only and no illegality therein
2021:DHC:134-DB
LPA 187/2020 & LPA 188/2020 P age 17 of 17
has been canvassed before us also. We find the CGIT -cum-Labour Court to
have, considering the work for which respondent/wor kman was engaged
and doing for the appellant NHAI and the leave taken by the
respondent/workman, to have rightly restricted the Award of back wages to
60% only. It cannot be lost sight of, that stepping out of the house for
discharging duties at work, entails an expenditure and which expenditure is
saved if not required to so step out of home for wo rk. Moreover duties
rendered at home, in household work, also have a mo netary value as
recently observed by the Supreme Court in Kirti v. Oriental Insurance
Company Ltd. 2021 SCC OnLine SC 3. We are thus satisfied that no
interference with the Award of the CGIT-cum-Labour Court qua Award of
back wages to the extent of 60% only was/is called for.
26. We accordingly dismiss the appeal impugning the order of
reinstatement and allow the appeal impugning enhanc ement of Award of
back wages from 60% to 100% with interest and resto re the Award of
CGIT-cum-Labour Court insofar as with respect to ba ck wages also.
The appeals are disposed of.

RAJIV SAHAI ENDLAW, J.

SANJEEV NARULA, J.
JANUARY 12, 2021
‘pp’

2021:DHC:134-DB