Delhi Transport Corporation vs Rajbir Singh

CM Appl No. 14094/2007 (delay)

Having heard learned Counsel for the parties and for the reasons stated in the application, the delay in refilling the appeal is condoned.

The application is disposed of.

CM Appl No. 14092/2007 (delay)

Having heard learned Counsel for the parties and for the reasons stated in the application, the delay in filling the appeal is condoned.

The application is disposed of.

LPA No. 1278/2007 & CM Appl No. 14091/2007 (stay)

This appeal is directed against the impugned order dated 3rd May 2007 passed by the learned Single Judge dismissing the Appellant�s Writ Petition (Civil) No. 9880 of 2005.

The aforementioned writ petition was filed by the Appellant Delhi Transport Corporation (''DTC'') challenging an Award dated 7th August 2004 passed by the Industrial Tribunal whereby the termination of the services of the Respondent was held to be illegal and his reinstatement with full back wages was ordered.

The facts in brief are that by an order dated 2nd March 1989 the DTC held the Respondent to be deemed to have resigned from service as he was absent without leave. The industrial dispute arising therefrom was referred for adjudication to the Industrial Tribunal (''Tribunal''). Relying on the judgment of this Court in Delhi Transport Corporation v. Om Kumar 2002 (2) SLJ 375 it was held by the Tribunal that the order passed by the DTC by invoking the Clause 14(10)(C) of the DRTA (Conditions of Appointment and Service) Regulations, 1952 was without the prior approval of the Chairman-cum-Managing Director and, therefore, was illegal. Consequently on this short ground, the Tribunal directed the reinstatement of the Respondent with full back wages.

The learned Single Judge declined to interfere with the Award of the Tribunal. Although the learned Counsel for the DTC, in the course of the arguments before the learned Single Judge, raised the issue of delay and laches in the Respondent approaching the Tribunal, the learned Single Judge observed that no such objection had been raised in the writ petition.

We have heard learned Counsel for the parties. The facts are purely not in dispute. The impugned order by which the Respondent was deemed to have resigned from the Appellant DTC on 2nd March 1989 the Respondent did not invoke the statutory remedy for at least 11 years thereafter. The Respondent had not offered any explanation for not approaching the Tribunal soon after the impugned dated 2nd March 1989 was passed. It was further submitted by the Appellant DTC that the Respondent has since been reinstated in service and his grievance cannot be present in the appeal limited to the question of back wages. It was submitted that since the Respondent himself had waited for over 11 years to invoke statutory remedy, he ought not to have been granted full back wages for a period of over 15 years.

Learned Counsel for the Respondent was unable to satisfy this Court that the delay in the Respondent approaching the Tribunal for relief was for bonafide reasons. She was also unable to counter the finding of fact that the Respondent was a habitually absentee in terms of his past record. We find merit in the contention of the Appellant that in the facts and circumstances of the case the Tribunal ought not to have directed the payment of full back wages. We also notice that in the writ petition a ground had been raised by the DTC that "when there is no work no salary is to be paid" and that the Tribunal had erred in not considering the past record. The learned Single Judge has not adverted to this aspect while precluding the Appellant from raising the plea of laches on the part of the Respondent in approaching the Tribunal.

In Delhi Transport Corporation Vs. Sardar Singh, the Supreme Court has taken a serious view of delinquent employees proceeding on excessive leave without any intimation, information or permission. Reference has also been made to an order dated 25th April 2006 passed by the Supreme Court in Civil Appeal No. 7110-7111 of 2004 (Delhi Transport Corporation v. Prakash Chand) where, in a batch of cases involving similar facts, it was directed that the workmen concerned would join back without laying any claim for back wages. This order of the Supreme Court has been followed by the Division Bench of this Court as evidenced by an order dated 30th May 2006 in Writ Appeal No. 13 of 2004 (Delhi Transport Corporation v. Naresh Kumar).

Accordingly, the impugned Award dated 7th August 2004 of the Tribunal and the impugned order dated 3rd May 2007 of the learned Single Judge in the Writ Petition (Civil) No. 9880 of 2005 are modified to the extent that the Respondent will stand reinstated in terms of the Award without any back wages. Consistent with the order dated 25th April 2006 passed by the Supreme Court in Civil Appeal No. 7110-7111 of 2004, it is directed that the period during which the Respondent remained out of service will be taken into account for the purpose of continuity so that the retiral/beneficiary benefits can be availed of by him. Further it is directed that any amount paid to the Respondent during the period will not be recovered. Consequently, it is directed that the amount deposited by the DTC in this Court pursuant to the order dated 12th October 2007 together interest accrued thereon will be refunded to the Appellant DTC by the Registry within a period of four weeks. The appeal is, accordingly, disposed of with the above directions. The pending application also stands disposed of.