Delhi Transport Corporation vs The Presiding Officer, Labour ...
2002 Latest Caselaw 686 Del

JUDGMENT

Anil Dev Singh, J.

1. This letters patent appeal of the Delhi Transport Corporation (for short 'the DTC') is directed against the order of learned Single Judge dated August 11, 2000 whereby the writ petition field by it against the award of the Labour Court-I, Delhi in ID No. 408/87 was rejected. The facts giving rise to the appeal are as follows:-

2. The second respondent was appointed as Conductor by the appellant on March 6, 1978. After a period of two and a half years, on September 9, 1980 the second respondent was confirmed on the aforesaid post by the appellant w.e.f September 4, 1980 on completion of extended period his probation. It is the case of the appellant that the second respondent after confirmation on several occasions remained absent unauthorisedly from his duties as per the following details:-

    Year       Period of unauthorised absence

  1981        94 days
  1982        60 days
     1983        91 days
               1984              103 days


 

On July 3, 1984, the appellant sent a communication to the second respondent by registered post directing him to report for duty with immediate effect and in the event of his being sick he should report to the Medical Officer, In-charge, Bawana Depot, for medical check up. The wife of the second respondent in her letter explained that the second respondent was under treatment and requisite medical certificates were being sent to the appellant. However, the wife of the second respondent did not send the medical certificates as promised by her in her communication. Again on January 18, 1985, the appellant addressed another letter to the second respondent calling upon him to produce the medical certificates w.e.f August 3, 1984. The letter did not have the desired effect and no medical certificates were sent by the second respondent or his wife to the appellant. Since the second respondent neither sent the medical certificates nor joined duty, the appellant, under Clause 14(10)(c) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 (for short 'the DRTA Regulations'), issued an order of removal of the second respondent from service for remaining absent from duty unauthorisedly. The appellant, however, later found that the second respondent in fact was charged under Section 302 IPC and was in custody w.e.f. December 22, 1984 to May 15, 1985.

3. Aggrieved by the order of his removal, the second respondent filed a departmental appeal but the same was rejected by the concerned authority on August 8, 1986. Efforts were made for conciliation by the Conciliation Officer but they also failed. As a result of failure thereof, on July 31, 1987, the State Government referred the following dispute to the Labour Court for adjudication under Sections 10(1)(c)and 12(5) of the Industrial Disputes Act, 1947 (for short 'the ID Act'):-

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

4. The Labour Court on analysing the material on record held that the termination of the second respondent was against the provisions contained in Section 25F of the I.D. Act read with Section 2(oo) and 25J thereof. The Labour Court was of the view that the appellant acted in violation of the principles of natural justice by resorting to Clause 14(10)(c) of the DRTA Regulations which provides for deemed resignation of the employee in case of his willful absence from duty continuously for more than three months. The appellant have failed before the Labour Court filed a writ petition challenging the order of the Labour Court dated July 15, 1999. The learned Single Judge, on August 11, 2000, rejected the writ petition on the ground that the impugned award did not suffer from any illegality. Not being satisfied with the aforesaid order passed by the learned Single Judge, the appellant has filed the instant letters patent appeal.

5. We have heard the learned counsel for the parties. The view of the Labour Court that the removal of the second respondent was violative of the principles of natural justice cannot be faulted. In D.K. Yadav v. J.M.A. Industries Limited, , on which the Labour Court placed reliance, it was held that principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable. It was also held that right to life enshrined in Article 21 of the Constitution includes right to livelihood. The Supreme Court went on to hold that the order of termination of the services of an employee/workman has the effect of visiting him with civil consequence s and affects not only his livelihood but also his career and livelihood of his dependents, and therefore, before taking any action of putting to an end the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case ought to be given. The Supreme Court also held that the principles of natural justice must be read into the Standing Order No. 13(2)(iv) which provided for deemed resignation of an employee who absented himself from duty continuously for a period of more than eight days. Keeping in view the aforesaid judgment of the Supreme Court, we are of the opinion that the Labour Court had no option but to hold that the action taken against the second respondent by the appellant of removal from service was violative of the principles of natural justice. At the same time, we do not think that the Labour Court was justified in directing reinstatement of the second respondent in service, or in directing payment of partial back wages for the intervening period. In this regard, it needs to be noted that he second respondent before his removal from service had served the appellant for a period of about seven years. during that period, as already noted, he remained absent for 94 days in 1981, 60 days in 1982, 91 days in 1983 and 103 days in 1984. Thus, it is clear that the second respondent remained absent for long spells during the years 1981 to 1985. By the order of the appellant dated March 14,1985, the second respondent was deemed to have resigned from service w.e.f. October 23, 1984. The appellant has been out of service for a period of more than 17 years. A similar situation was dealt by us in Murari Lal Sharma v. Nehru Yuva Kendra, , in which case the termination of the employee w.e.f. December 1, 1988 was held to be violative of Section 25F of the ID Act, 1947 by the Industrial Tribunal by its award dated March 2, 1998. The Industrial Tribunal directed reinstatement of the workman with full back wages and other benefits which would have accrued to him had he remained in service. The employer challenged the award by means of a writ petition in this Court. Though the learned Single Judge agreed with the Industrial Tribunal that the termination of the employee was bad in law, at the same time, it was not considered proper to grant the relief of reinstatement with full back wages to the employee. The learned Single Judge, having regard to the fact that 12 years had passed since the termination of the workman, was of the view that it would not be appropriate to grant the relief of reinstatement with full back wages merely because there was a technical flaw in terminating the service of the workman. The learned Single Judge modified the award of the Tribunal and directed the employer to pay a sum of Rs. 60,000/- to the employee in lieu of reinstatement and back wages. The letters patent appeal field by the employee against the order of the learned Single Judge did not find favor with us and the same was rejected by us. while dong so, we referred to a judgment of an earlier Division Bench of this Court in Delhi Transport Corporation v. Presiding Officer and Anr. 2000 LLR 136, and the decisions of the Supreme Court in Rolston John v. Central Government Industrial Tribunal-cum-Labour Court and Ors. (1995) Suppl. 4 SCC 548, and Rattan Singh v. Union of India and Anr. . It will be apposite to reproduce paras 9 to 15 of the judgment in Murari lal Sharma's case (supra):-

"9. We have considered the submissions of the learned Counsel for the parties. The only question which needs to be decided is whether the learned Single Judge was legally justified in modifying the award of the Tribunal by directing the back wages. It appears to us that the view taken by the learned Single Judge is supported not only by a decision of the Division Bench of this Court in Delhi Transport Corporation v. Presiding Officer and Anr. (supra), but also by the decisions of the Supreme Court in Rolston John v. Central Government Industrial Tribunal-cum-Labour Court and Ors. (supra), and Rattan Singh v. Union of India and Anr. (supra).

10. In Delhi Transport Corporation v. Presiding Officer and Anr. (supra), the Division Bench was dealing with the case of a workman who at the time of the termination of his services by the Delhi Transport Corporation was working as a conductor on probation for one year.The probation period was extended till October 31, 1968. Three days before the expiry of the extended period of probation, on October 29, 1968 his services were terminated by the Delhi Transport Corporation in exercise of the power conferred by Regulation 9(a)(i) of the Delhi Road Transport Authority (Condition and Appointment of Service) Regulations, 1952 without assigning any reason s therefore. The workman aggrieved by the order of termination raised an industrial dispute. The appropriate Government referred the dispute to the Industrial Tribunal The Industrial Tribunal answered the reference by holding that termination of the workman's services were proper and valid and he was not entitled to any relief. The award was thereafter challenged by the workman by means of a writ petition. The learned Single Judge allowed the writ petition holding that termination of the services of the workman was void ab initio and inoperative. While doing so, the learned Single Judge directed the reinstatement of the workman with back wages. Thereupon, the Delhi Transport Corporation filed a Letters Patent Appeal. The Division Bench in Letters Patent Appeal did not disturb the finding of the learned Single Judge that the termination of services of the workman was contrary to Section 25F of the Industrial Disputes Act, but it did not endorse the direction of the learned Single Judge to continue him in service with full back wages. the Division Bench on review of a large number of authorities and the fact soft the case awarded compensation in lieu of reinstatement and back wages to the workman. The reasoning of the Division Bench for declining reinstatement of the workman is as follows:-

"27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back wags was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in The Punjab Land Development and Reclamation Corporation Ltd. Chandigarh, [1940 (4) SLR 154] seem to suggest that compensation in lieu of reinstatement and back wages in now the norm. IN any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.

28. Considering the facts of the case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman. The reasons are that if the workman is to be reinstated then it has to be as a Conductor on probation. Since his services were terminated in October 1968, it would be impossible for anybody to hazard a guess what his career profile would have been over the last 31 years. By directing his reinstatement we may be inviting a host of hypothetical questions such as seniority, promotions, etc. Moreover, the reason for the termination of the services of the workman was that the appellant was not satisfied with his work. Under these circumstances, we feel that it may be unfair to the appellant if the workman is thrust upon it, especially when the workman can be given adequate compensation."

In Rattan Singh v. Union of India and Anr. supra), where termination of services of the workman was made without complying with the provisions of Section 25F of the Industrial Disputes Act, the Supreme Court instead ordered payment of Rs. 25,000/- in lieu of reinstatement and back wages. In this regard the Supreme Court observed as follows:-

"3. We find merit in the said submission of Shri Ashri.

From the dates mentioned in the judgment of the First Appellate Court dated 22.1.1985, it appears that the appellant had continusouly worked for more than 240 days in a year. Since he was a workman, he was entitled to the protection of Section 25F of the Act and the said protection could not be denied to him on the ground that he was a daily-rated worker. It is not the case of the respondents that the provisions of Section 25F of the Act were complied with while terminating the services of the appellant. In these circumstances, the termination of services of the appellant cannot be upheld and has to be set aside. The services of the appellant were terminated in the year 1976. Nearly 20 years have elapsed since then. In these circumstances, we are not inclined to direct reinstatement of the appellant. But having regard to the facts and circumstances of the case, we direct that a consolidated sum of Rs. 25,000/- be paid to the appellants in lieu of compensation for back wages as well as reinstatement. This amount is being paid in full and final settlement of all the claims of the appellant. The said amount shall be paid within tow months. The appeal is disposed of accordingly. No costs."

12. As is evident, the Supreme Court did not consider it appropriate to direct reinstatement of the workman with back wages after a gap a 20 years.

13. Again in Gujarat State Road Transport Corpn. And Anr. v. Mulu Amra, 1995 Supp. (4) SCC 548, the Supreme Court set aside the order of the High Court directing reinstatement in service of a workman with full back wages and instead directed the employer to pay a sum of Rs. 75,000/- to the workman in lieu of reinstatement of and back wages in full and final satisfaction of his claims. This view of the Supreme Court was based on the fact that the workman was dismissed way back on November, 17,1967 and in the year 1992, when the appeal was decided by the Supreme Court, about 24 years had gone by.

14. In the instant case, the appellant had barely worked in he establishment of the respondent as an Accounts Clerk for a period of about 240 days when his services were terminated in the year 1988. Between the date of termination and as of now about 13 years have gone by. The same considerations as are detailed in para 28 of the decision of this Court in Delhi Transport Corporation v. Presiding Officer and Anr. supra), are applicable to the instant case. The learned Single Judge was, therefore, entirely right in directing payment of compensation instead of reinstatement with back wages.

15. The learned Counsel for the appellant relied on the decisions of the Supreme Court in Municipal Corpn. Of Delhi (MCD) v. Prem Chad Gupta and Anr. ; Indian Overseas Bank v. I.O.B.

Staff Canteen Workers" Union and Anr. ; Hindustan Tin Works Pvt. Ltd. v. The Employee of Hindustan Tin Works Pvt. Ltd., and Ors. ; where the workman whose service had illegally terminated were held entitled to reinstatement and back wages. The view taken by the Supreme Court in those cases was based upon fact situations which were different from the fact situation of the instant case. The learned Single Judge has also pointed out that the appellant manipulated the appointment of his wife and mother-in-law as apart time instructors at Vidya Nagar, Agra, and at village Achhnnera centres of the respondent respectively. It was also noticed that the respondent was not carrying on any commercial enterprises for the purpose of making profit. That apart, in view of the work and conduct of the appellant as an ad-hoc employee, his services were not regularized. Keeping in view the peculiar circumstances of the case we are not persuaded to take a different view than the one taken by the learned Single Judge."

16. Having regard to the view expressed by us in Murari Lal Sharma's case (supra) based on the aforesaid decisions of the Supreme Court and an earlier decision of the Division Bench, we are of the view that it is not a fit case in which reinstatement should have been directed by the Labour Court along with a direction to pay back partial wages for the intervening period during which the second respondent remained out of service. We are of the view that the second respondent should be paid a sum of Rs. 3,50,000/- as compensation in lieu of reinstatement and back wages. After the conclusion of the arguments we had in fact asked the learned counsel for the appellant whether the appellant would be wiling to pay a sum of Rs. 3,50,000/- to the second respondent as compensation in lieu of reinstatement and back wages. The appellant through the learned counsel had signified its consent. Accordingly, we direct the appellant to pay a sum of Rs. 3,50,000/- to the second respondent within a period of four weeks from today. The appeal is disputed of in the aforesaid terms.