Delhi Transport Corporation vs Kishan Pal

Rajiv Sahai Endlaw, J.—The appellant DTC impugns the order dated 10th February, 2010 of the learned Single Judge allowing the application of the respondent workman u/s 17B of the Industrial Disputes Act, 1947 as well as the order dated 14th February, 2012 dismissing CM No.7696/2010 preferred by the appellant DTC for modification of the earlier order dated 10th February, 2010. Notice of this appeal was issued. We have heard the counsels for the parties. The respondent workman was working as a driver with the appellant DTC and was on 26th June, 1991 declared medically unfit and given pre-mature retirement. The industrial dispute raised by the respondent workman was referred and the Industrial Adjudicator vide award dated 17th November, 2002 directed reinstatement. Challenging the said award W.P.(C) No.7883/2004 was filed by the appellant DTC.

The appellant DTC, in response to the application filed by the respondent workman u/s 17B of the ID Act, was unable to show the respondent workman being employed in any establishment and accordingly payment u/s 17B, from the date of filing of the affidavit by the respondent workman of non-employment onwards, was directed vide order dated 10th February, 2010 supra.

The appellant DTC applied (vide CM No.7696/2010 supra) for modification of the aforesaid order u/s 17B of the Act pleading that the respondent workman had attained the age of 55 years of superannuation of driver in the appellant DTC on 31st October, 2005 and thus was not entitled to wages u/s 17B of the Act thereafter.

The learned Single Judge dismissed the aforesaid application vide order dated 14th February, 2012, holding that the same was in the nature of seeking review of the earlier order dated 10th February, 2010 and had been filed beyond the time prescribed therefor. It was further held that the remedy if any of the appellant DTC if aggrieved by the said order was by way of appeal.

Accordingly, the present appeal, also challenging the order dated 10th February, 2010, has been preferred along with an application for condonation of delay in preferring the appeal in so far as the order dated 10th February, 2010 is concerned. Since the application of the appellant DTC for modification of the order was pending and had been dismissed only on 14th February, 2012, we are satisfied that the appellant DTC had sufficient reason for not preferring the appeal earlier and accordingly condone the delay.

In so far as the merits of the controversy is concerned, the same is no longer res integra. A Division Bench of this Court in Delhi Transport Corporation v. Shri Dharam Pal (Ex.Driver) 160 (2009) DLT 555 has held that even where the benefit of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is to be given and the drivers retained in service inspite of medical disability, their age of superannuation would be 55 years only, i.e. as of a driver and not of 60 years as of other employees.

No other argument has been raised before us. We accordingly allow this appeal and set aside the order dated 14th February, 2012 of the learned Single Judge in CM No.7696/2010 and modify the order dated 10th February, 2010 on CM No.10865/2004 u/s 17B of the Act by holding that the appellant DTC is liable to pay 17B wages only till the date the respondent workman attains the age of superannuation of 55 years.

No order as to costs.