Jagdev vs Delhi Transport Corporation

CM No. 2402/2013

Exemption is allowed, subject to all just exceptions.

Application stands disposed of.

LPA No. 82/2013

The appellant was employed as a Conductor with the respondent/DTC. He was charge sheeted on the allegations that he had charged fare from four passengers without issuing tickets to them. Pursuant to an inquiry, the appellant was removed from service. A dispute raised by him with respect to his removal from service was referred for adjudication to Labour Court, which directed his reinstatement but denied back wages to him on the ground that in his affidavit, the appellant had not stated that he had remained unemployed after his removal from service. Being aggrieved from denial of back wages, the appellant preferred a writ petition which came to be dismissed vide impugned order dated 7th December, 2012. The said order is under challenge by way of this appeal. It is an admitted position that neither the appellant made an averment before the Labour Court that he was not gainfully employed after his removal from service nor did he lead any evidence to this effect. The learned counsel for the appellant submits that even in the absence of any averment and evidence with respect to the appellant not being gainfully employed after his removal from service, at least part wages should have been paid to him in view of the decision of the Supreme Court in Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, where the Supreme Court, inter alia, observed and held as under:-

... Respondent No. 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned counsel for the Appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the Respondent herein had been reinstated from 27.2.2001.

In view of the fact that the Respondent had been reinstated in service and keeping in view the fact that he had not raised any plea or adduced any evidence to the effect that he was remained unemployed throughout from 24.1.1987 to 27.2.2001, we are of the opinion that the interest of justice would be sub-served if the Respondent is directed to be paid 50% of the back wages.

We had occasion to examine the issue of payment of back wages on reinstatement of a workman in LPA No. 24/2013 titled `Delhi Transport Corporation vs. Sarjeevan Kumar'' decided on 21st January, 2013. After considering various decisions of the Apex Court, including the decision relied upon by the learned counsel for the appellant, the legal proposition in this regard was enunciated as under:-

i. Payment of full backwages is not automatic on Labour Court/Tribunal granting reinstatement of workman.

ii. The same principle is equally applicable in case an order of dismissal is set aside by the Labour Court/Tribunal on the ground of non-compliance of Section 25F of the I.D. Act.

iii. The Labour Court/Tribunal shall give reasons for determining the specified quantum of backwages.

iv. The burden is on the workman to show that he is entitled to full backwages or to a reasonable backwages and he is not gainfully employed during the period he was not in service of the management.

v. Once materials are placed by workman on the above, the burden shifts on to the Management to disprove such claim.

vi. In the event, the Labour Court/Tribunal fails to give any reason to quantify backwages, the High Court can go into the said issue and decide on quantum.

In coming to the aforesaid conclusion, we also took into consideration the following view taken by the Apex Court in Kendriya Vidyalaya Sangathan and Another Vs. S.C. Sharma,

...When the question of determining the entitlement of a person to backwages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.

In view of the conclusions drawn by us in Sarjeevan Kumar (supra), the appellant is not entitled to back wages since neither he made any averment nor did he produce any evidence claiming that he was not gainfully employed after he was removed from service. As regards the relief granted by Supreme Court in Daya Shankar Rai (supra), we may refer to Article 142 of the Constitution which empowers only the Supreme Court to pass any such decree or make any such order as is necessary for doing complete justice in any cause or matter pending before it, and the Court, in the facts and circumstances of the case before it, felt it appropriate to pass such an order.

For the reasons stated hereinabove, we find no merit in the appeal. The same is, hereby, dismissed. There shall be no order as to costs.