*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th May, 2011
+ W.P.(C) 17138/2004
% D.T.C. ..... Petitioner
Through: Ms. Saroj Bidawat, Adv.
Versus
JAI BHAGWAN ..... Respondent
Through: Mr. G.S. Charya, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
CM No.12705/2004 (for stay)
1. The interim order dated 9th February, 2005 staying the operation and implementation of the award dated 7 th February, 2003 of the Industrial Adjudicator impugned in this writ petition is made absolute till the decision of the writ petition.
W.P.(C)17138/2004 Page 1 of 5 CM No.15814/2006 (of the respondent workman u/S 17B of the I.D. Act)
2. The counsel for the respondent workman points out that in the order dated 3rd March, 2011, the application has been erroneously shown as of the year 2010 while it is of the year 2006.
3. The writ petition impugns the award of the Industrial Adjudicator directing the petitioner DTC to reinstate the respondent workman with full back wages. As aforesaid, there is an interim order of stay of operation and implementation of the award. The respondent workman in his application supported by affidavit has stated that he is unemployed. The necessary ingredients of Section 17B are satisfied. The petitioner DTC in its reply has been unable to state that the respondent workman is employed anywhere.
4. The application was filed within a year of service of the notice of the writ petition.
5. Accordingly, the application is allowed with following directions:
(i) the respondent workman to within two weeks of today file an affidavit in this Court undertaking to this Court to in the event of the W.P.(C)17138/2004 Page 2 of 5 writ petition succeeding, pay/refund to the petitioner DTC the excess amount over and above last drawn wages, if any received under order of this Court.
(ii) Subject to the filing of the affidavit aforesaid, the petitioner DTC to within eight weeks of today pay to the respondent workman the arrears of 17B wages at the rate of last drawn wages/minimum wages whichever is higher from the date of the award i.e. 7th February, 2003 till 30th April, 2011, failing which besides other remedies of the respondent workman, the petitioner shall incur interest thereon at the rate of 10% per annum.
(iii) the petitioner DTC to with effect from the month of May, 2011 pay to the respondent workman the 17B wages at the rate aforesaid month by month and by the 15th day of the succeeding month, failing which as aforesaid, the same shall incur interest at the rate of 10% per annum.
The application is disposed of.
W.P.(C)17138/2004 Page 3 of 5
W.P.(c) No.17138/2004
6. The counsels for the parties have also been heard on the writ petition.
7. The writ petition impugns the award dated 7 th February, 2003 of the Industrial Adjudicator on the following reference:
"Whether the punishment imposed upon Sh. Jai Bhagwan by the management vide its orders dt. 21-4-1993 is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
8. The services of the respondent workman as a Conductor with the petitioner DTC were terminated for the reason of 80 days' absence without leave. Even though the respondent workman was ex parte before the Industrial Adjudicator, the Industrial Adjudicator on the admission of the witnesses of the petitioner DTC that leave without pay was not misconduct under the Rules & Regulations of DTC, held the order of termination to be bad and directed reinstatement.
9. Both counsels state that the present case is covered by the judgment of the Apex Court in DTC Vs. Sardar Singh (2004) 7 SCC 574. They further agree that the award impugned in this writ petition, in view of the W.P.(C)17138/2004 Page 4 of 5 said judgment, is liable to be set aside.
10. I have perused the records; the matter is found to be covered by the judgment in Sardar Singh (supra) and is required to be remanded to the Industrial Adjudicator for fresh adjudication. It is unfortunate that petitioner DTC did not immediately after judgment in Sardar Singh have this matter remanded; had it done so, it would have saved on the 17B wages which it has been directed to pay.
11. Accordingly, the writ petition is allowed. The award dated 7 th February, 2003 of the Industrial Adjudicator impugned in this writ petition is set aside. The matter is remanded to the Industrial Adjudicator for adjudication afresh in accordance with law. The parties to appear before the Industrial Adjudicator on 12 th July, 2011.
No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) MAY 09, 2011 bs W.P.(C)17138/2004 Page 5 of 5