Shiv Dayal vs Delhi Transport Corporation And ...
2003 Latest Caselaw 237 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. In this Writ Petition the petitioner has prayed for quashing of the order of termination No. OD-I/GO/PF/Con/88/4895 dated 21.10.1988 (Annexure-`A') and the order No. PLD-S/4(2)/89/197 dated 7.2.1989 rejecting his appeal there from. The petitioner has also sought reinstatement with consequential benefits of service including pay and allowances in full.

2. The petitioner was employed as a conductor with the Delhi Transport Corporation. He joined service on 16.2.1970 and was confirmed on 30.5.1973. It is the petitioner's case that he fell ill and could not attend to his duties on account of his ailments which included a psychiatric problem. The petitioner has annexed several medical certificates dated 13.7.1988, 9.11.1988 and 24.11.1988 to substantiate this allegation of his. Though, the Respondents in their Reply Affidavit have categorically stated that no such medical certificates were ever received by them and that the petitioner abstained from duty without any authorisation and without applying for leave. The petitioner contends that despite the fact that he was unable to attend to his duties for reasons beyond his control his services were terminated under Regulation 14(10)(c) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations 1952 (hereinafter referred to as, "the said Regulations") vide the impugned termination letter dated 21.10.1988. His appeal dated 19.12.1988 has also been rejected as communicated vide the said order dated 7.2.1988. He further submits that the Regulation 14(10)(c) itself has been struck down by a Division Bench of this Court as being unconstitutional vide its judgment in Delhi Transport Corporation v. Daya Nand and Others etc., in LPA Nos. 208, 181, 28-38/2002 decided on 7.5.2002.

3. I have heard arguments advanced on behalf of the petitioner and have gone through the pleadings of the parties as well as the said Division Bench Judgment relied upon by the counsel for the petitioner. Neither the validity of the medical certificates nor their alleged submission to the Respondents need be looked into inasmuch as this petition can be disposed of on the question of validity of Regulation 14(10)(c) of the said Regulations itself.

4. It is apparent that the validity of Regulation 14(10)(c) of the said Regulations was in question in the said Letters Patent Appeals before the Division Bench. In those cases also, as in the present case, the services of the Writ Petitioners had been terminated invoking Regulation 14(10)(c) of the said Regulations whereunder it was provided that, if an employee failed to resume duty on the expiry of the maximum period of extraordinary leave granted to him, be would be deemed to have resigned his appointment and shall accordingly cease to be in the employment of the Authority.

5. In the said decision in the case of DTC v. Daya Nand (supra) the Division Bench held as follows:

"27. A person, in the event the legal fiction created under Regulation 14(10)(c) of the Regulations is given its full effect, would be deemed to have resigned as a result whereof there would be complete cessation of the relationship of the master and servant between the appellant and its employees, wherefore no legal formalities are required to be complied with.

28. In a given case the said provision may wrongly be applied, as in an appropriate case it may be possible for the employee to show that he could not attend to his duties for reasons beyond his control.

29. Before the provision of Regulation 14(10(c) of the Regulations is taken recourse to by the authority, the employee will have no say and in the event, the Management intends to take recourse to the said provision, he would merely be communicated with the ultimate order. Such a provision, therefore, does not meet with the requirements of Article 14 of the Constitution of India."

6. The order of termination dated 21.10.1988 has admittedly been issued invoking the provisions of Regulation 14(10)(c) of the said Regulations which has been held to be invalid by the Division Bench in the case of DTC v. Daya Nand (supra). Therefore, the order of termination which is based entirely on the invocation of the said invalid Regulation will also be illegal and invalid. Similar will be the fate of the said order dated 7.2.1989 whereby the Petitioner's appeal dated 19.12.1988 was rejected by the General Manager of the Delhi Transport Corporation. As regards back wages it would be pertinent to keep in mind the fact that the petitioner was deemed to have resigned in 1988 and 14 years have elapsed since then. Further, it is an admitted fact that the petitioner had abstained from work which resulted in the invocation of the "deemed to have resigned"Regulation 14(10)(c). It is another matter that this Regulation has been held to be invalid.

7. Accordingly, in view of the aforesaid facts and circumstances and in particular the decision of the Division Bench in DTC v. Daya Nand (supra) the impugned order of termination dated 21.10.1988 and the order dated 7.2.1989 are quashed. The respondents are directed to reinstate the petitioner with 25% back wages and all other consequential benefits. There will be no order as to costs.