Lakhmi Chand vs MGMT. of D.T.C.

Hon''ble Ms. Justice Mukta Gupta

By the present petition the Petitioner assails the award dated 6th July, 2004 whereby the learned Trial Court held that the Petitioner was deemed to have resigned and thus was entitled to benefits available to a person who has resigned after serving since 1974 up to the date when he was deemed to have resigned as per service rules. Learned counsel for the Petitioner contends that Clause 14(10)(c) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 (in short the Regulations) has been struck down as violative of the principles of the audi alteram partem by this Court in Delhi Transport Corporation Vs. Om Kumar and Others, . Thus, the impugned order is liable to be set aside and it be held that the deemed resignation of the Petitioner was illegal being violative of the principles of natural justice as neither any notice was issued nor any intimation was given nor any enquiry was conducted before the Petitioner was deemed to have resigned. The Petitioner has since attained the age of 65 years and thus no relief of reinstatement is now possible. However, in the facts of the case, the Petitioner is entitled to full back wages with interest thereon. Reliance is placed on Novartis India Ltd. Vs. State of West Bengal and Others, and Krushnakant B. Parmar Vs. Union of India (UOI) and Another, .

Learned counsel for the Respondent though admits that Regulation 14(10)(c) has been held to be illegal by this Court in DTC Vs. Om Kumar (supra) and number of other cases, however contends that the Petitioner is not entitled to any relief in view of the fact that the Petitioner was in custody from 24th April, 1989 to 21st February, 1991 and instead of informing the same he continued sending letters that he was unwell. His leave was regularized till 8th August, 1999. However, since he did not report thereafter also he was deemed to have resigned. Though Rajasthan High Court finally in a revision petition filed by the Petitioner acquitted him of the charges under Opium Act, however due to the fact that he concealed material information from the Respondent, he is not entitled to grant of any relief.

I have heard learned counsel for the parties. The Petitioner was employed as a driver in 1974. However on 24th April, 1989 he was convicted by the Bundi Court, Rajasthan and thus was taken into custody. The Petitioner absented since then. His leave up to 8th August, 1989 was regularized by the Respondent vide order dated 10th August, 1989. However, his absence beyond 8th August, 1989 could not be regularized and thus pursuant to Clause 14(10)(c) of the Regulations the Petitioner was declared as deemed to have resigned from the services of the Corporation with effect from 9th August, 1989. The Petitioner was released from custody on 21st February, 1991 and he filed an appeal to the Department on 6th June, 1991 which was rejected. Thus, on a dispute being raised, a reference in the following terms was sent, "whether Shri Lakmi Chand abandoned his job or his services were terminated by the management illegally and/ or unjustifiably by the management, and if so, to what relief is he entitled to and what directions are necessary in this respect". On the basis of the pleadings of the parties, learned Trial Court came to the conclusion that the Petitioner was deemed to have resigned and was thus entitled for benefits available to a person after serving since 1974. The impugned order is required to be set aside in view of the decision of this Court in DTC Vs. Om Kumar (supra) wherein this Court held:

A distillation of the many judgments of the Hon''ble Supreme Court discloses that the consistent opinion has been its insistence that statutes must conform with the acid test of rules of natural justice. The Apex Court has relentlessly struck down provisions in which the audi alteram partem principle has been ignored. Where it has been argued that this principle may be read into the statutory provision the Court has accepted the plea and thereby saved it from being struck down as unconstitutional. In those cases where the virus of the Statute has not been assailed it has nonetheless looked for a compliance with the audi-alteram partem requirement, such as in the Aligarh Muslim University''s case (supra) where it observed that nothing new had been stated by the Petitioner in his writ petition apart from the reasons which had previously given by him to the University and had been rejected by it. In the present case the statutory rule is not nullified by insisting that the DTC must enable the delinquent workman to be heard before his services are terminated on the premise of ''deemed resignation''. On the Corporation issuing a notice to the workman he may furnish an unacceptable defense or no Explanation at all. But it would atleast enable a workman who, by way of to take an illustration, may have suffered an accident on his way to reporting back for duty, to furnish an Explanation which a responsible management would accept with alacrity. It would empower the DTC to apply the Regulation after a due consideration of the cause shown by the workmen. Granting an opportunity to be heard does not inexorably result in an Enquiry calling for being held.

The DTC, it appears,: was alive to the possibility that the invocation of Clause 14(10)(C) was not legal. On 6.2.1991 an Administrative Circular appears to have been issued which reads as follows:

DELHI TRANSPORT CORPORATION

(A GOVT. OF INDIA UNDERTAKING)

I.P. ESTATE, NEW DELHI.

No. Adm. I-3(28)/91 Dated 6.2.91.

It has been decided not to invoke Clause 14(10)(c) of the D.R.T.A. (Conditions of Appointment and Service) Regulations, 1952 in the cases where the employee remain/are found absent without permission or prior sanction of leave and instead the Unit concerned are advised to take disciplinary action against such employees in accordance with the standing Orders governing the conduct of D.T.C. employees.

The above decision has been taken with the approval of Chairman-cum-MD in consultation with Legal Deptt. It will remain in force till further orders.

Sd/-

(A.K. Srivastava)

Administrative Officer (HQ)

It is thus apparent that this Court held that Regulation 14(10)(c) was violative of the principles of audi alteram partem and moreover the Respondent themselves decided not to invoke the said Clause.

Since the award of the learned Trial Court is based on the action taken by the Respondent under Regulation 14(10)(c), which Regulation this Court held to be violative of the principles of audi alteram partem, the impugned award cannot be sustained. The same is set aside. The matter is remanded back to the learned Trial Court to decide the reference in accordance with law after affording a reasonable opportunity of hearing to the parties. The parties shall appear before the learned Trial Court on 17th September, 2012. Petition is disposed of accordingly. Trial Court Record be sent back forthwith.