Delhi High Court
Sri Kishan vs D.T.C. on 31 August, 2006
Author: M Goel
Bench: M Goel
JUDGMENT
Manju Goel, J.
1. The petitioner was a Conductor in the Delhi Transport Corporation. He was removed from service on 19.11.1987. He raised an industrial dispute which was referred to Presiding Officer Labour Court-X by virtue of an order dated 5.5.1989 with the following terms:
Whether the removal of Sh. Shri Krishan from services is legal and/or justified if not, to what relief is he entitled and what directions are necessary in this respect.
2. The Labour Court passed an award on 17.1.2000. The Labour Court granted reinstatement to the petitioner. The Labour Court, however, held that the petitioner was not entitled to any back wages. The Labour Court has given a brief reason. The Labour Court says that it could not be believed that the workman was unemployed for twelve years since he was terminated from service and that he had concealed material information from the Court and, therefore, was not entitled to the discretion of back wages.
3. Challenging this award to the extent of back wages, the petitioner has referred to the judgments of the Supreme Court in the case of Hindustan Tin Works Limited and Its Employees 1978(II) L.L.J. 474 and judgment of a Division Bench of this Court in the case of Delhi Transport Corporation v. Ram Kumar and Anr. reported in II L.L.J. 191.
4. However, both these judgments were discussed in the latest Supreme Court judgment in the case of U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain Pandey .
5. After considering all the previous judgments on this point and also taking into account the provisions of Section 106 of the Evidence Act, the Supreme Court has settled the issue by saying that the onus to plead and prove that the workman was unemployed during this period lies entirely on the workman.
6. The case of the petitioner as made out in the present writ petition is not that the petitioner has proved his unemployment. The award also says that the petitioner has not disclosed the facts of his employment. The grant of back wages is not a routine function and back wages cannot be given as a matter of of course whenever reinstatement is granted.
7. It may be stated here that the respondent has already paid a sum of Rs. 62,762/- for the period from 11.5.2000 and 31.5.2001. Although during this period the workman was not actually working with the DTC as the DTC at that time was considering whether the award of the Labour Court was to be implemented.
8. Mr. D.N. Vohra, Advocate appearing for the petitioner says that the Labour Court should have granted the petitioner some amount of back wages if not full wages. However, if the principles laid down in the judgment of U.P. State Brassware Corpn. Ltd. and Anr.(supra) even for that the workman has to establish to what extent he was unemployed during the interregnum period and to what extent he has suffered in pecuniary terms. Since he has not discharged the onus as is recorded by the Labour Court in its impugned judgment, the petitioner has no foundation to make such a claim. Further, it was within the special knowledge of the petitioner as to what was his employment and earning. The petitioner did not disclose the true facts. Thus, he has not fulfillled his obligation for getting an order of back wages from the Labour Court.
9. This Court, further, is not an appellate court and cannot set aside the award which is not shown to be perverse.
10. The writ petition is dismissed.
