Delhi Transport Corporation vs Delhi Administration And Others.
2000 Latest Caselaw 138 Del

ORDER

A.K. Sikri, J.

1. Civil writ petition No. 439 of 1990 is filed by Delhi Transport Corporation (hereinafter referred to as DTC, for short). In this writ petition DTC challenges the award dated 3rd May, 1989 passed by Shri P.L. Singla, Presiding Officer, Labour Court in I.D. No. 478 of 1984. By this award learned Labour Court held that the service of respondent no. 1- Shri Avtar Singh (since deceased, hereinafter referred to as Workman, for short) were terminated illegally and he had not himself abandoned his job. Direction was given to reinstate him with back wages and continuity of service till he attains the age of superannuation.

2. In Civil writ petition No. 849 of 1996 Smt. Harbahajan Kaur, widow of the deceased employee has challenged the order passed by appellate authority under Payment of Gratuity Act. On an application filed by her late husband Shri Avtar Singh before the Controlling Authority under the Payment of Gratuity Act, order dated 16th March, 1994 was passed by the Controlling Authority awarding Rs. 38,318/- as amount of grauity. DTC filed appeal against the said order before the Appellate Authority and Appellate Authority passed the impugned order dated 22nd January, 1996 reversing the orders of the Controlling Authority. This is how Smt. Harbhajan Kaur has come to this Court and filed the aforesaid writ petition. It may be stated here that the main fact which prevailed with the appellate authority was that Controlling Authority should not have awarded gratuity since the matter regarding termination of deceased employee which resulted in impugned order dated 3rd May, 1989 passed by Industrial Tribunal in I.D. No. 478 of 1994 was challenged by the DTC in the High Court by filing Civil Writ Petition No. 439 of 1990 and the same was pending before the High Court. Therefore, the issue to be determined in this writ petition squarely depends on the outcome of the writ petition no. 439 of 1990 and consequence in this writ petition would automatically follow once Civil Writ Petition 439 of 1990 is decided.

3. For this reason let me take up Civil Writ Petition No. 439 of 1990 in the first instance.

Civil Writ Petition No. 439 of 1990

4. Before coming to the legal issue raised in this petition let me first state the facts in brief which have given rise to the dispute between the parties.

5. Workman was appointed with DTC as a conductor in the year 1948. In the year 1991 he was granted two days earned leave i.e. for 24th and 25th September, 1981. He, however, did not resume duty on 25th September, 1981. It is the case of the workman that since his wife also became seriously ill and had to undergo a major operation he had to extend leave beyond 25th September, 1981. On the other hand, case of DTC is that after 25th September, 1981 no more earned leave was due to him and was granted three months extra-ordinary leave without pay from 26th September, 1981 till 25th December, 1981. However, according to the workman he applied for leave from 25th December, 1981 duly supported by medical certificate but no intimation was given to him. According to DTC, even after 25th December, 1981, when extraordinary leave without pay also got exhausted, as the workman remained absent and his absence beyond 25th December,1981 could not be regularised under Regulation 14(10) (c) of the Conditions of Appointment and Service Regulation, 1952 (hereinafter referred to as Regulation, for short). It was treated as if workman is deemed to have resigned. His appointment w.e.f. 26th December, 1981 in accordance with Regulation 14 (10) (c) of the aforesaid Regulation. A letter was sent by registered post to the workman asking him to explain within three days as to why action by operation of Regulation 14 (10) (c) of the Regulation may not be taken against him. Since he failed to resume duty, as per the version of the DTC, another communication dated 8th January, 1982, under the signature of Depot Manager was served upon the workman stating that his services had been terminated under Regulation 14 (10) (c).

6. The workman raised industrial dispute against his alleged termination by sending demand notice to DTC followed by filing statement of claim before the Conciliation Officer, Delhi Administration, Delhi. DTC took the stand that services of the petitioner were not terminated but it is petitioner who did not report for duty even after 25th December, 1981 in the manner mentioned above and therefore had amounted to his deemed resignation or abandonment of service under Regulation 14 (10) (c) of the Regulation since conciliation talks ended in failure, on basis of report submitted talks ended in failure, on the basis of report submitted by the Conciliation Officer, Secretary (Labour). Delhi Administration who in exercise of powers conferred by Section 10(1)(c) and Section 12(5) of the Industrial Disputes Act read with Government of India, Ministry of Labour, Notification No. S-11011/2/75-DK(1A) dated April 14, 1975, referred the matter for adjudication before the Labour Court with the following terms of reference:-

"Whether Shri Avtar Singh himself abandoned his job or whether his services were terminated illegally and/or unjustifiably by the management and it so, to what relief is he entitled and what directions are necessary in this respect ?"

7. On receipt of the reference Labour Court issued notice to the parties and both the parties filed their respective pleadings as well as documents supporting their case. Bases on these pleadings.

Following issues were framed by the Labour Court:-

"i. Whether this tribunal has jurisdiction to adjudicate upon the reference as stated in Para no.1 of the preliminary objection ?

ii. Whether the reference is bad in law for the reasons stated in pare No. 2 and 3 of the preliminary objection ?

iii. As per the terms of reference.

_In support of his case, Shri Avtar Singh appeared himself and his deposition was recorded as WW1. On behalf of the Petitioner- Corporation, one Shri Ajit Singh, Senior Clerk appeared as MW-1."

8. After hearing the arguments learned Labour Court passed the impugned award and returned the following, inter alia, findings:-

a) The Labour Court was duly constituted and, therefore, it has got the jurisdiction to adjudicate upon the reference;

b) 10 "Delhi Transport Undertaking" is not mentioned in Section 2(a)(i) of the I.D. Act. Therefore, it is the "State Govt." which was the "appropriate Govt" in this case;

ii) the reference was not bad on the ground that it was made by Secretary (Labour) Delhi Administration;

c) i) Remaining absent would mean that it was a misconduct. Once misconduct is there and punishment of major penalty has to be inflicted, enquiry has to be conducted. In the present case, no enquiry whatsoever was held against the workman;

(ii) The case of "deemed to have resigned" would amount to "retrenchment" and as such the provisions of Section 25-F of the Industrial Disputes Act, 1947 have to be complied with. Since there was no evidence whatsoever that compensation under Section 25-F of the Industrial Disputes Act was offered or paid to the workman concerned, an order of deemed to have resigned is a bad one;

d) i) The order of deemed to have resigned was issued under the signatures of the Depot Manager, who was definitely subordinate to and/or lower in rank of General Manager, the order of the Depot Manager is bad;

ii) Since the Resolution No. 319 dated 2.3.84 was subsequent to the date of appointment of the workman that cannot validate the order of termination of services. The order of retrenchment deemed to have resigned was bad on this ground also.

In its resultant findings, the Labour Court has been pleased to hold that Shri Avtar Singh himself had not abandoned his job but his services were terminated illegally. He was entitled to be reinstated with back wages and continuity in service. However, his reinstatement would not continue beyond the date he attains the age of superannuation. He would also not be entitled to wages for the period beyond the date when he attains the age of superannuation."

9. The aforesaid findings of the Labour Court give an indication of the various submissions, including legal submissions which were made by the DTC before the Labour Court. In the present writ petition all the aforesaid findings are challenged by DTC. Mr. S.N. Bhandari, learned counsel appearing on behalf of DTC made forceful submissions in support of his contentions. These may now be noted at this stage.

10. The first submission of Shri Bhandari, learned counsel for the petitioner was that the entire award passed by the learned Labour Court was without jurisdiction as the Labour Court itself was not properly constituted and therefore it had got no jurisdiction to adjudicate upon the reference. To support his submission, learned counsel for the petitioner referred to Sections 7 and 7-A of the Industrial Disputes Act, 1947 (hereinafter referred to as Act, for short). Section 7 deals with constitution of one or more Labour Courts and Section 7-A deals with constitution of one or more Industrial Tribunals.

11. Referring to the provision of Section 7 and 7-A of the Act, it was contended that it is an appropriated government which could constitute Labour Court or the Industrial Tribunal, as the case may be. The appropriate government in the instant case, according to Mr. Bhandari, was Central Government and not State Government. On this basis, it was also argued that the reference made by Labour Court, Delhi Administration was also incompetent. In support of his submission learned counsel for the petitioner took me to various provisions of the Act including Section 2(a) of the Act which defines " appropriate government", as well as Sections 7, 7A, 8, 10, 12, and 17 of the Act. He also referred to Sections 33-C, 36-A, 38, 39 and 40 of the Act and on the basis of various expressions used in these Sections he tried to argue that in case of DTC, appropriate government is central government more particularly when DTC has come into existence by the Act of Parliament. It was submitted that Central Government could not, by notification dated 3rd November, 1971 or 26th April, 1975 delegate the powers of State Government to the Lt. Governor.

12. The aforesaid submissions are noted in brief. Reason for that is simple. The questions raised by the petitioner have earlier also come up for consideration and conclusively dealt with by the full bench of this Court in the case of India Tourism Development Corporation versus Delhi Administration, Delhi reported in 1981 LIC 1309 (hereinafter referred to as ITDC case, for short). Since the aforesaid full bench decision had considered these arguments in depth and has rejected the same, judicial propriety mandates me to follow the said judgment and therefore no useful purpose would be served in repeating the view taken by full bench which dealt with precisely the same contentions advanced now by Mr. Bhandari. (Interestingly, Mr. Bhandari was the counsel before the Full Bench also).

13. It may be mentioned at this stage that the submission of Mr. Bhandari was that after the judgment of full bench of this Court in the case of ITDC case (supra) Supreme Court has pronounced upon this very aspect in the case of Goa Sampling Employee Association Vs. General Superintendence Company, India (P) Limited and others reported in 1985 LIC 666 as well as in a recent judgment in the case of Air India Corporation versus United Labour Union .

14. It was his submission that in view of the aforesaid judgment, the case of ITDC (supra) requires reconsideration. I am not persuaded to do this for the following reasons :-

(a) Prima facie, I am of the opinion that these two judgments do not alter the position in view of the decision of full bench of this court in ITDC case (supra). No doubt, in Goa Sampling Case (supra) Supreme Court has made the observation that concept of State Government is foreign to administration to union territories and Article 239 of the Constitution provides that every union territory is to be administered by the President of India, who may act through an administration appointed by him. However, in the same judgment Court referred to Section 3(60)(c) of the General Clauses Act to which reference was also made by full bench of this Court in ITDC case (supra). Therefore, wherever expression State Government is used in relation to union territory, the Central Government would be State Government.

(b) In so far as judgment of Supreme Court in Air India case (supra) is concerned it does not lend any help to the argument advanced by Mr. Bhandari. That was the case where applicability of the notification dated 9th December, 1976 issued by the Central Government under Section 10(2) of the Contract Labour (Regulation and Abolition) Act, 1970 was in question. Appropriate government as defined under Section 2(i)(a) of the above Act is same as is defined in Section 2(a)(i) of the Act, 1947. The question was whether that notification is applicable to Air India Statutory Corporation. It would have been applicable in case appropriate government in respect of Air India Statutory Corporation was the Central Government. It is in this context that the Supreme Court gave the judgment holding that in respect of Air India Statutory Corporation, Central Government was the appropriate government. This decision has not bearing on the issue at hand in the present case where one concerned with the validity of the delegation of the powers of Central Government to Lieutenant Governor. In any case, it is a matter of record that the review petition in the cases of Air India (supra) has been entertained by the Supreme Court particularly on the point of "appropriate government" and the matter is referred to the constitutional bench.

15. The workman in this case died long ago and it is the widow of the workman who is persuing this matter. It is not a fit case where this Court should consider re-examination of the whole issue and refer the same for reconsideration by larger bench.

16. It was next contended by Mr. Bhandari that Labour Court had no jurisdiction to decide the issue relating to " retrenchment" of a workman. Mr. Bhandari referred to the terms of reference and argued that what was referred to Labour Court was the validity of termination of the workman. However Labour Court had, in the impugned award, held that the termination was illegal though the automatic discharge of workman amounted to retrenchment within the meaning of Section 2(oo) of the Act and the same was illegal as it was in violation of Section 25-F of the Act, 1947. Here, according to him, Labour Court fell in error as Section 25-F of the Act, 1947 deals with "retrenchment" and not "termination". If it was a case of retrenchment it was neither referred to petitioner as per the terms of reference which confined to "termination" only nor Labour court had power to decide about the validity of the retrenchment.

17. He butterssed his argument by refering to Section 7(1) of the Act, 1947 as per which jurisdiction of the Labour Court was confined to the matters mentioned in Second Schedule and a perusal of Second Schedule would show that retrenchment was not mentioned as one of the matters within the jurisdiction of Labour Court. Mr. Bhandari particularly drew my attention to Item 6 in Second Schedule which reads as under:-

"All matters other than those specified in Third Schedule."

Item 10 in the Third Schedule reads as under :-

"Retrenchment of workman and closure of establishment."

18. Thus, according to him, retrenchment was specifically mentioned in Third Schedule and the matters which are specifically mentioned in Third Schedule were clearly excluded in the Second Schedule as per which Item 6, according to him, gives expression "dismissal", "discharge", "retrenchment" to be distinct and separate meanings and these terms are used separately under the various provisions of the Act, 1947. For this he referred to Section 2(s) and Section 2(A) of the Act, 1947. This argument of Mr. Bhandari appears to be very attractive in the first blush. However, when one goes little deeper and analyse this argument one finds that it has no merit. Reasons for this are not too far to seek :-

(1) The terms of reference would indicate that validity of "termination" is referred for adjudication. Therefore, one has to examine the merit of expression "termination". Termination is an expression of much wider import. When there is a secession of employer employee relationship it would amount to termination. Section 2(s) of the Act, 1947 uses the expression "dismissal, discharge and retrenchment" and all these are various facets of termination.

No doubt Section 2(a) uses the expression termination by stating "such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute" it appears that legislature while using the expression termination, after using the expression discharge, dismissal and retrenchment, indicated that every kind of termination and not merely termination by way of discharge, dismissal or retrenchment should be deemed to be an industrial dispute. Therefore, one cannot say that if the expression termination is also used in Section 2(a) of the Act, 1947 retrenchment is not termination.

(2) One may not have to rely upon only the dictionary meaning or the meaning attributed to term "termination" in service or labour jurisprudence alone. The expression retrenchment is now judicially determined as well. Way back in the year 1976, while interpreting the expression retrenchment in the case State Bank of India versus N. Sundara Money , the view expressed by Supreme Court, after considering the provision of Section 2(oo) of the Act, 1947, was that "whatever reason, every termination spells retrenchment". This view has been confirmed time and again in various judgments. One may quote para 82 of the Supreme Court judgment in the case of The Punjab Land Development & Reclamation Corporation Ltd., Chandigarh versus The Presiding Officer, Labour Court, Chandigarh and others reported in 1990 (4) SLR 154 where the apex court observed as under :-

"Applying the above reasonings: principles and precedents, to the definition in S. 2 (oo) of the Act, we hold that "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section."

(3) The expression used in Item 10 of Third Schedule is "retrenchment of workman and closure of establishment". Here the expression retrenchment is used in the word "workman" which is used in plural and also takes its shade from "closure of establishment". Thus, it does not include the case of termination of a service of an individual workman whose termination is found to be illegal by not fulfillling the mandatory provision of Section 25F of the Act, 1947. This view would further find support from the reading of all the items listed in the Third Schedule which would show that most of these matters relate to "collective dispute" namely, where group of workmen are interested. On the other hand, disputes are left to the jurisdiction of Labour Court. Therefore, the expression "retrenchment" of workmen occurring in Item 10 of the Third Schedule is to be given retrospective meaning in the manner indicated above and when the case of individual workman regarding validity of his termination is questioned, it would be covered under Item 3 if it is discharge of dismissal or in the residuary clause i.e. Item 6 which mentions "all matters other than those specified in the Third Schedule".

19. What is referred to the Labour Court, as per terms of reference, is the validity "termination". It can clearly be covered by Item 6. While holding such termination to be illegal as it is amounting to retrenchment and such retrenchment is not in consonance with Section 25 of the Act, 1947, Labour Court would not loose power to decide the validity of termination merely because ultimately it has to hold that termination in the instant case amounts to retrenchment which is illegal being violative of Section 25F of the Act, 1947. In other words, once it is seen that the reference regarding the validity of termination could be made to Labour Court such reference would not become invalid or Labour Court would not cease to have power to decide such reference because, while examining the validity of the termination the Labour Court comes to conclusion that this termination is retrenchment.

20. For the aforesaid reasons I hold that Labour Court had the power to decide dispute regarding the termination of the workman.

21. As the challenge to the award by Mr. Bhandari fails on technical grounds one would examine his submission made to challenge the award on merits. The main contention on Mr. Bhandari was that the termination of the services of the workman under Regulation 14 (10) (c) would not amount to retrenchment/act of termination by the employer. It was deemed resignation by the workman and therefore would not be "retrenchment". It was also submitted that it was the prerogative of the DTC to treat the absence as misconduct and hold departmental enquiry or invoke the provision of Regulation 14 (10) (c) and if the DTC chose latter course of action, that too after issuing notice dated 26th December, 1981 to the workman, the action of the DTC could not be faulted with.

22. Before dealing with the validity of termination on merits, there is one hurdle in the way of DTC which it has to cross. The impugned order of alleged termination is passed by Depot Manager. The workman had challenged the order also on the ground that Depot Manager had no power to pass termination order as it was the General Manager who was appointing authority of the workman and therefore no officer subordinate and/or lower in rank than the General Manager could pass termination order. Labour Court has infact accepted this plea and held that order of the Depot Manager was bad in law. Assailing these findings of the Labour Court Mr. Bhandari submitted that in fact Depot Manager was delegated the powers with regard to dismissal of conductor and driver vide Resolution No. 319 and therefore he had power to pass termination order in respect of workman also. Dealing with this Resolution, Labour Court has observed as under :-

"The learned A.R. for the management relied on Resolution No. 319 dated 2.3.84 whereby powers were delegated to the Depot Manager with regard to dismissal of Conductors and Drivers. Shri Avtar Singh was retrenched under "deemed to have resigned" clause on 8.1.82 vide letter Ex. W-2 and, therefore, resolution No. 319 dated 2.3.84 which is subsequent to that date cannot validate the order of termination of services. The order of retrenchment being the "deemed to have resigned" clause is bad on this ground also."

23. Mr. Bhandari argued that the aforesaid finding of the Labour Court are clearly erroneous inasmuch as Resolution No. 319 is dated 2nd March, 1974 and not 2nd March, 1984 is wrongly recorded by the Labour Court. Since Labour Court presumed that Resolution was of 1984 and services of the workman were terminated on 8th January, 1982 it was not applicable and as on 8th January, 1982 Depot Manager was not delegated with any such powers. Therefore, according to Mr. Bhandari, of the correct date of Resolution is 2nd March, 1974 is on 8th January, 1982 he was empowered to take this decision. This position could not be disputed by Mr. D.N. Vohra, learned counsel appearing on behalf of the workman. In fact preference to this Resolution finds place in the judgment of this Court in Umed Singh vs. R.K. Baweja, Industrial Tribunal and another reported in 1980 SLJ 107 wherein relying on this very Resolution this Court had held that Depot Manager was competent to pass orders in respect of conductors and drivers. To the same effect is the judgment of this Court in the case of Hari Chand and others vs. DTC and another reported in 1995 LIC 1261. Therefore, the findings of the Labour Court to the effect that Depot Manager was empowered to pass orders of termination in respect of the workman is not correct and is hereby set aside.

24. Now let me revert back and deal with the submission of Mr. Bhandari, on the validity of termination.

25. In the instant case the DTC has resorted to clause 10 of Regulation 14 in terminating the services of the workman. Admittedly workman was a regular employee and he was in service of the DTC for 31 years. If he remained unauthorisedly absent for some time, whether such absence could be treated as deemed resignation namely, an act on the part of the worker that he wanted to severe the relationship of employer and employee. On the facts of this case therefore it cannot be said that merely because workman remained absent for some time unauthorisedly, it would be deemed that he wanted to resign from the job. In such cases, the unauthorised absence for similar period by an employee who had rendered 31 years of service, could only be treated as misconduct and it was therefore incumbent upon the DTC to hold an appropriate enquiry after serving charge-sheet upon the workman. If any support is needed for this view, one may refer to two judgments of the Supreme Court in the case of D.K. Yadav Vs. M/s. J.M.A. Industries Limited reported in 1993 (67) 111 and in the case of Upton India Limited Vs. Shammi Bhan and another reported in 1998 (79) FLR 233. In fact provision like Regulation 14 (10) )c), particularly when it is seen in the context of the present case where the workman had regular service of 31 years, would be valid at all or not itself is in doubt. In a recent case Allahabad High Court struck down Rule 63 (a) of U.P. State Handloom Corporation Limited (Officers and Staff) Service Rules, 1981 which provided for automatic termination of service due to absence. Allahabad High Court relied upon the various judgments of Supreme Court in support of its conclusion. However, I need not say anything further as the validity on this Regulation is not questioned in these proceedings. However, the action of the DTC in treating the case of workman as deemed resignation by resorting to such provision in the instant case is not proper as noted above. There is another reason because of which present petition, in any case, should fail. As stated above, the workman died long age ant his widow is contesting the present case. Therefore once the Labour Court has taken a particular view, in the facts and circumstances of this case I do not want to interfere in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India for the reasons stated hereinafter.

26. Although the termination is held to be invalid, in any other case I may have been persuaded to grant compensation instead of reinstatement as it cannot be said that conduct of the workman was without blemish inasmuch as the workman remained absent even when there was no leave at his credit and he did not join duties even after show cause notice asking him to join back the duties was sent to him. However, since the workman has already died and during the pendency of this writ petition interim order was passed directing the DTC to pay him the wages in terms of award which ware already received by the workman during his lifetime taking such a course of granting compensation instead of reinstatement would cause hardship to the widow of the deceased workman. Therefore, keeping in view this aspect in mind I maintain the award and feel that it is not a fit case for interfering with the award in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. This writ petition accordingly fails and is dismissed with cost quantified at Rs. 5000/- to be paid to the widow of the deceased workman within two months from today :

Civil Writ Petition No. 849 of 1996.

27. Briefly stating the facts of this case are that husband of the petitioner i.e. the deceased workman filed application dated 4th March, 1991 before the Controlling Authority under the Payment of Gratuity Act for payment of gratuity on the ground that he was employed as a Conductor with DTC and had put in 39 years of service and did not attained the age of superannuation on 31st July, 1989. DTC did not file any reply to the said application and instead filed an application before the Controlling Authority praying that the application be not decided in view of the pendency of dispute regarding the termination of the workman. The Controlling Authority however proceeded with the matter and passed order dated 16th March, 1994 awarding a sum of Rs. 38,318/- as amount of gratuity. It may be mentioned that since the workman died during the pendency of the application, the petitioner was brought on record as legal heir of the deceased workman. Against this order appeal was filed on 21st May, 1994 alongwith application for condensation of delay which was filed beyond 60 days which is the limitation period for filing such appeals. As against the award of Industrial Tribunal dated 3rd May, 1989 passed by Mr. P.L. Singla in I.D. No. 478 of 1984, the DTC had filed Civil Writ Petition No. 439 of 1990, the appellate authority taking the pendency of the writ petition before High Court into consideration disposed of the appeal by passing the following order :-

"On the basis of the above facts and circumstances, the order dt. 16.3.1994 of Controlling Authority is defective and the dispute regarding the retirement of workman Avtar Singh is pending in Hon'ble High Court and till the disposal of the said appeal before the said Hon'ble High Court, the question of calculation of gratuity amount does not arise at all. However, on the basis of non-deposit of gratuity amount as per the order of the controlling authority, the appeal is not liable to be considered but in view of Principles of Natural Justice, the decision regarding payment of Gratuity and other pensionary benefits cannot be taken before the final disposal of the appeal pending before the Hon'ble Court. In view to the above facts and circumstances, it is ordered that any decision regarding payment of gratuity or pension etc. can be taken by the Controlling Authority after the decision of the appeal by the High Court of Delhi after giving full opportunity to both the parties to produce their averments and contentions."

28. Without commenting upon the correctness of the approach adopted by the appellate authority, suffice is to observe that since the Civil Writ Petition. 439 of 1990 filed by DTC has been dismissed by me, the inevitable result thereof is that petitioner becomes entitled to gratuity of Rs. 38,318/- as awarded by the Controlling Authority. The Controlling Authority has also awarded an interest of 10% per annum from 31st July, 1989. Petitioner shall also be entitled to this interest. The order of the appellate authority is therefore set aside and that of the Controlling Authority restored. Inasmuch as the only reason for denying gratuity to the deceased workman was that till the final disposal of the Civil Writ Petition No. 439 of 1990 the decision regarding payment of gratuity and other pensionary benefits cannot be taken. This reason, for whatever worth, no more survives. This writ petition is accordingly allowed. DTC is directed to release the amount of gratuity of Rs. 38,318/- + interest @ 10% per annum to the petitioner from 31st July, 1989 till the date of payment of the gratuity amount. The payment be made to the petitioner within a period of two months from the date of receipt of copy of this judgment. In addition to this, Smt. Harbhajan Kaur shall also be entitled to cost which is quantified at Rs. 5000/- in this petition.