Delhi Transport Corporation ... vs Ishwar Singh, Batch No. 15664 S/O ...
2004 Latest Caselaw 1218 Del

JUDGMENT

Madan B. Lokur, J.

1. The grievance of the Petitioner is against an Award dated 5th April, 2002 passed by Industrial Tribunal-I in ID No. 49/98.

2.The Respondent was working as a driver with the Petitioner. It appears that during a routine check up, it was found that he was suffering from colour blindness. For this reason, it was found that he could not continue to work as a driver and he was pre-maturely retired by an order dated 27th May, 1993. The Respondent was offered a post in a lower grade but he declined to accept it.

3.The Respondent filed a writ petition in this Court being WP (C) No. 3249/1993. In this writ petition, he challenged his pre-mature retirement and by an order dated 26th July, 1993, a Division Bench of this Court disposed of the writ petition in the following terms:-

''Rule D.B.

Since a very short point is involved, we proceed to decide the writ petition finally.

The petitioner is working as a Driver with respondent. The respondent got the petitioner medically examined and found that he was color blight. The respondent, therefore, offered him a job in the lower grade.

The petitioner disputes the medical report and submits that he is willing to do the job of a driver.

We cannot go into the question of petitioner's medical fitness in this writ petition under Article 226 of the Constitution of India. The petitioner has got alternative remedy for that purpose.

In the circumstances we dispose of the writ petition with a direction to the respondent to absorb the petitioner in a lower grade of a Peon in class IV with liberty to the petitioner to take other appropriate legal proceedings available to him under the aw. The respondent will pass appropriate orders absorbing him in the lower grade within four weeks from today.

For the purpose of pension and retirement benefits, the intervening period will not be treated as break in service. However, the petitioner will not be entitled to claim seniority in the new grade on this basis.

Petitioner will be at liberty to raise the question regarding wages for the intervening period before the Labour Court which will considered on merits without being influenced by this order.

The writ petition is disposed of in the above terms. No costs.''

4. A perusal of the above order shows that the Respondent was offered a job in the lower grade, which he appears to have declined. The Division Bench directed the Petitioner to absorb the Respondent in the lower grade of peon in Class IV and the intervening period from the date of his pre-mature retirement to the date of his absorption as a peon will not be treated as a break in service for the purposes of pension and retirement benefits. The Respondent was held to be not entitled to claim seniority in he new grade of peon. As regards wages for the intervening period, the Respondent was at liberty to raise an industrial dispute.

5. The Petitioner filed an SLP against the order dated 26th July, 1993 but the same was dismissed on 4th April, 1994.

6. Eventually, the Respondent was appointed as a peon on 2nd August, 1994 on a basic pay of Rs.775/- per month in the scale of Rs.775-1025.

7. The Respondent was aggrieved by the fixation of his pay at the bottom of the grade. Accordingly, he filed WP (C) No. 5051/1994 praying for a direction that he should be given the last drawn pay as his basic pay.

8. The writ petition filed by the Respondent was heard along with four other writ petitions and they were all disposed of by a common judgment delivered in WP (C) No. 5050/1994 (Narender Singh vs. DTC) decided on 24th May, 1996.

9. The Division Bench while disposing of the writ petition filed by the Respondent noted his contention that he had been discriminated against inasmuch as some other employees (Laxman Singh, Raj Singh and Jai Karan) were given a basic pay of Rs.1025/- per month in the post of peon while the Respondent was given a basic pay of Rs.775/- per month.

10. While dismissing the writ petition filed by the Respondent, the Division Bench held that there was no discrimination between the Respondent and the other three persons. The distinction in the case of the Respondent and the other three persons was that those three persons had accepted their re-designation to the post of peon while in service but the Respondent had not accepted this re-designation. On the contrary, the Respondent was offered the job of a peon which he declined to accept and, therefore, it was held that he could not be placed at par with the three persons above mentioned. It was also held that the terms and conditions of appointment were offered to the Respondent and he was told that he will be absorbed as a peon in the basic pay of s.775/- per month. This was duly accepted by the Respondent and he cannot now agitate for a higher pay scale. The Division Bench also held that the order passed by this Court in WP (C) No. 3249/1993 had been faithfully followed by the Petitioner by offeing the Respondent a post as peon. There was no direction regarding protection of the pay of the Respondent and, therefore, the Respondent was not entitled to the relief prayed for.

11. Subsequent to the decision of the Division Bench in Narender Singh, the Respondent raised an industrial dispute in which the following question was referred for adjudication:-

''Whether Shri Ishwar Singh Peon is entitled to the maximum pay of Rs.1025/- in the pay scale of Rs.775-1025 along with stagnation increments and if so, to what relief is he entitled and what directions are necessary in this respect.''

12. While passing the impugned Award dated 5th April, 2002, the learned Tribunal relied upon the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in coming to the conclusion that the Respondent should be given the benefit of pay protection. Learned counsel for the Petitioner has rightly contended that this Act does not have any retrospective operation and, therefore, cannot be taken advantage of by the Respondent who was pre-maturel retired as far back as in May, 1993 and was absorbed as a peon in August, 1994.

13. Reliance placed by learned counsel for the Respondent on the decision of another learned Single Judge of this Court in DTC vs. Daljit Singh, WP (C) No. 3294/2003 decided on 16th May, 2003 is also of no avail. It has not been held by the learned Judge that the Act has retrospective operation. All that has been done is that the intention of the legislature evidenced from the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has been imported into the decision of the learned Judge. Whether this is permissible or not is not necessary for me to decide. But, in any case, from the decision rendered in Daljit Singh, it is not clear whether the employee had accepted the post of peon or not. If he had accpted the post of peon, then his case would be on par with the case of Laxman Singh, Raj Singh and Jai Karan and he would, therefore, be entitled to more than the basic pay of Rs.775/- per month. On the other hand, if the employee had not accepted the low r post of peon, then his case would be covered by the decision rendered by the Division Bench in Narender Singh and to that extent, the view expressed by the learned Single Judge in Daljit Singh may be contrary to the order passed by the Division Bench in Narender Singh.

14. But, be that as it may, the fact remains that the present case is fully covered by the decision rendered in Narender Singh, to which the Respondent was himself a party. The learned Tribunal could not go contrary to the decision of the Division Bench in Narender Singh and thereby award to the Respondent a higher basic pay of Rs.1025/- per month. The scope of jurisdiction that was available to the learned Tribunal, in terms of the order passed by the Division Bench of this Court in WP (C) No. 3249/1993 was limited only to the question of wages for the intervening period from the date of pre-mature retirement of the Respondent till the date of his absorption as a peon. The learned Tribunal could not have gone beyond the permission given by the Divisio Bench of this Court in WP (C) No. 3249/1993.

15. Consequently, following the view taken by the Division Bench in Narender Singh, the impugned Award must be set aside and it has to be held that the basic pay of the Respondent was correctly fixed at Rs.775/- per month. It is ordered accordingly.

16. The writ petition is allowed. No costs.