*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st May, 2012
+ LPA No.388/2012
THE MANAGEMENT OF DELHI TRANSPORT
CORPORATION ..... Appellant
Through: Ms. Arati Mahajan, Adv.
Versus
DHAN SINGH ...... Respondent
Through: Mr. K.C. Dubey, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE
1. This Intra-Court appeal impugns the order dated 23 rd February, 2012 of the learned Single Judge dismissing W.P.(C) No.16069/2006 preferred by the appellant DTC. The said writ petition was preferred impugning the award dated 2nd September, 2004 of the Industrial Adjudicator directing the appellant DTC to reinstate the respondent workman with full back wages and other consequential benefits.
2. The admitted facts are that the respondent workman was employed as a driver with the appellant DTC since the year 1977. He was on 26th LPA 388/2012 Page 1 of 7 December, 1991 charge sheeted for unauthorized absence from 13 th November, 1991 to 12th December, 1991. An Inquiry Officer (IO) was appointed and who on the very first day of the inquiry asked the respondent workman as to whether he admitted the charge. The respondent workman admitted absence and promised to be careful in future. On the basis of the same, the IO held the charge to have been made out and the appellant DTC vide order dated 24 th March, 1992 removed the respondent workman from employment.
3. The Industrial Adjudicator vide order dated 19th March, 2004 held the inquiry to be perverse for the reasons of the IO having failed to notice that the respondent workman had on 13th December, 1991 joined back duty and also produced a medical certificate for the period of absence. The Industrial Adjudicator in the award dated 2 nd September, 2004 held that since the appellant DTC had, on the respondent workman reporting back, allowed him to join and having treated his unauthorized absence as leave without pay, no misconduct remained and the removal from service was thus bad. Accordingly award of reinstatement with full back wages was made. Impugning the said award the writ petition was filed. LPA 388/2012 Page 2 of 7
4. Both the Industrial Adjudicator as well as the learned Single Judge have concluded that there was no admission of charge by the respondent workman and the appellant DTC had failed to establish the charge before the IO. We would like to re-produce the following analysis done by the learned Single Judge in this behalf:-
"9. In order to find out whether a fair and proper enquiry was held by the petitioner - management before punishing the respondent - workman I have perused the enquiry proceedings as well as the enquiry officer's report, copies of which were filed by the petitioner - management along with this writ petition. Enquiry officer's report shows that he had held the charges levelled against the respondent - workman proved in view of the fact that he himself had admitted before him that he was at fault and that in future he would be careful and in order to find out whether actually that was so, I had also gone though the one page enquiry proceedings held on 12th March, 1992. The date of 12th March, 1992 was the first date in the enquiry and on that day at the outset the enquiry officer had read out the charge-sheet to the respondent - workman and had asked from him whether he was admitting the charges or not. The respondent - workman had then made a statement crux of which, if read as a whole, was that the case against him should be closed as he had fallen sick about which he had sent necessary intimation from his home to his Depot but he did not know why that intimation could not reach there in time. He further claimed that he had taken leave because of his sickness in respect of which he had submitted medical certificate and fitness certificate at the time of joining of his duty (which admittedly had LPA 388/2012 Page 3 of 7 been submitted by him on 13th December, 1991). The enquiry officer thereafter closed the enquiry proceedings while observing that in case it would be considered necessary in the interest of justice to re-open the enquiry that could be done by the Corporation(DTC) at any time. Thereafter he submitted his report to the Disciplinary Authority to the effect that the respondent-workman had admitted his fault that he had not sent the intimation of his sickness in time.
10. In my view, from the statement made by the respondent - workman before the enquiry officer it does not appear that he had accepted that he had committed the alleged acts of misconduct. All that he had stated in his preliminary questioning by the enquiry officer was that he had sent the intimation about his sickness from his home but that could not reach the Depot in time which was not known to him. He had also given justification for not reporting for duty during the period in question and it is not the management's case that that explanation of his being sick was found to be false. He had in fact clearly stated before the enquiry officer that his case should be closed. If that prayer was not to be accepted then enquiry officer should have proceeded further with the enquiry to find out if actually the respondent-workman's absence was willful or it was due to justified reasons. The management's witness had admitted before the Labour Court in cross-examination that the medical papers which the respondent - workman had submitted at the time of joining his duty on 13 th December, 1991 were accepted by the management. So, in view of the initial statement having been made by the respondent - workman in the enquiry the enquiry officer could not have closed the enquiry proceedings on the ground that respondent - workman had admitted that he had committed some misconduct. If the management's LPA 388/2012 Page 4 of 7 representative was not satisfied that the statement made by the respondent - workman that he had sent intimation to his Depot Manager about his falling sick he should also have asked the enquiry officer to proceed with the enquiry. Since it is admitted by the management that on 13th December, 1991 the respondent had submitted an application along with medical papers it was required to show as to what orders had been passed on that application which the respondent claimed to be a leave application while the management claimed that that application could not considered to be a leave application. Learned counsel for the management had not disputed that an employee can seek sanction of leave on medical grounds at least even at the time of joining and that the management can entertain it if good reasons are given but it was submitted that whether leave is sanctioned or not is a different matter that is incorrect. In this case, however, the management had not even produced in the enquiry the decision taken on the workman's application given on 13th December, 1991. I am, therefore, of the view that this in fact is a case of no enquiry at all."
5. We see no reasons to disagree with the aforesaid reasoning of the learned Single Judge.
6. The counsel for the appellant DTC has argued that in a case like this, full back wages ought not to have been awarded. However when the termination is held to be illegal and unjustified, normal rule is to award the back wages. It was for the appellant DTC to make out a case as to why the respondent workman should not have been granted full back wages. LPA 388/2012 Page 5 of 7 However no such case was made out by the appellant DTC.
7. Be that as it may, what we find is that though the respondent workman was removed from service on 24th March, 1992 but the reference of the dispute regarding termination was only of the year 1999. We have enquired as to when the respondent workman raised the dispute. Though the said date is not available on record and neither counsel is able to inform of the same but from the number which the reference bears, it appears that the dispute also was raised by the respondent workman in the year 1999. The counsel for the respondent workman also fairly admits the said position. We are of the opinion that the respondent workman has been wrongly awarded back wages from the date of termination when there has been inordinate delay of seven years on his part in raising the dispute. We therefore modify the award and the judgment of the learned Single Judge by holding the respondent workman to be not entitled to back wages from the date of termination and till 30th June, 1999 being approximately three months prior to 7 th October, 1999 when the dispute was referred to the Industrial Adjudicator. Accordingly the respondent workman would be entitled to back wages only w.e.f. 1st July, 1999.
LPA 388/2012 Page 6 of 7
8. The appeal is allowed to the aforesaid effect and disposed of. No order as to costs.
ACTING CHIEF JUSTICE RAJIV SAHAI ENDLAW, J MAY 21, 2012 pp LPA 388/2012 Page 7 of 7