Balwan Singh, Driver vs Delhi Transport Corporation
2007 Latest Caselaw 1709 Del

JUDGMENT

G.S. Sistani, J.

1. The petitioner has filed the present petition under Articles 226 and b227 of the Constitution of India impugning the award dated 1.6.2005 passed by the Presiding Officer, Labour Court No. VII, Delhi in I.D. No. 76/99. The petitioner has sought modification of the award dated 1.6.2005 to the extent that instead of the relief of 25% back wages granted to him, the latter be entitled to full back wages along with all other consequential benefits.

2. Some incontrovertible facts, leading to the present petition, are set out as under:

The petitioner had served the Indian Army from 1968 to 1983 when he retired. The petitioner was appointed as a driver with the respondent-corporation on regular basis on 25.6.1985 and he was allotted badge No. 16044. During the course of his duty while he was driving a bus bearing No.DL 1P 9761 on 4.8.1992 the bus met with an accident with a cyclist in which the cyclist, who was at fault as per the petitioner, died and FIR No. 308/1992 was lodged with the Police Station Mandir Marg, New Delhi under Sections 279/304-A IPC. The petitioner thereafter received charge sheet dated 18.8.1992 in which it was stated that the petitioner while on duty on bus No.DL-1P-9761 on 4.8.1992, had caused an accident with a cyclist, in which the cyclist died and FIR No. 308 of 1992 was lodged with Police Station Mandir Marg, New Delhi u/s. 279/304-A IPC. Since the alleged charge amounted to misconduct, petitioner was asked to submit his reply. The petitioner submitted his reply, which was found unsatisfactory and a detailed enquiry was ordered. The criminal trial also commenced against the petitioner. The enquiry was held by the Inquiry Officer into alleged charges. The petitioner brought to the notice of the respondent that as per Office Order No. 21 dated 19.12.1973 issued by the respondent itself in which it was mentioned that if an employee of the respondent was involved in a criminal charge then charge sheet should not be issued against him and action of removal etc. would be considered on the basis of the result of the judicial case. However, the Inquiry Officer did not stop the inquiry. The Inquiry Officer found the petitioner to be guilty of the alleged charge and by order dt.7.3.1995 the petitioner was removed from the service of the corporation as mark of punishment. However, the Metropolitan Magistrate, Delhi by its judgment dt. 9.3.1998 acquitted the petitioner in FIR No. 308 of 1992 Under Section 279/304-A IPC.

3. Pursuant to the termination of his services by the respondent, the petitioner raised an industrial dispute. The industrial dispute was referred by the appropriate government to the Labour Court vide reference no. F. 24(79/99-Lab./6572-76 dated 15.2.1999 in the following terms:

Whether the removal of Sh. Blawan Singh from service is illegal and/or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?

4. The case of the petitioner before the Labour Court was that the domestic inquiry conducted against him was not in accordance with the principles of natural justice as no list of witnesses or documents had been given to him, no defense assistance was provided, no eye witness was produced and the enquiry was conducted solely on the basis of hearsay evidence. The petitioner also placed on record before the Labour Court a copy of the Office Order No. 21 dated 19.12.1973 issued by the respondent stipulating that if an employee of the respondent was involved in a criminal charge then charge sheet should not be issued against him and action of removal, etc. would be considered on the basis of the result of the judicial case. Relying on the said office order dated 19.12.1973, it was contended that the respondent ought to have waited for outcome of the criminal case against the petitioner before initiating an inquiry against the latter.

5. Per contra, the case of the respondent before the Labour Court was that the domestic inquiry held against petitioner was in accordance with the principles of natural justice and that the petitioner had been removed from service keeping in view the gravity of the charges leveled against him.

6. On the pleadings of the parties, the Labour Court vide order dated 25.4.2001 framed the following issues:

i)Whether a fair and proper enquiry was not conducted in accordance with the principles of natural justice.

ii)As per terms of reference.

7. The Labour Court vide order dated 12.10.1994 decided issue No. 1 in favor of the petitioner, holding thereby, that the removal of the petitioner vide order dated 7.3.1995 was without any merit inasmuch as the inquiry conducted against him was not based on any concrete evidence. In this regard, the observations of the Labour court in para 11 of the award are relevant and quoted hereunder:

11. Vide my separate order dated 12.10.94, the issue No. 1 was decided in favor of the workman and against the management. The relevant portion of the said order is as under:

... It is seen from the inquiry proceedings that there was no eyewitness examined during inquiry and inquiry report shows that ATI along another official reached at the spot after the accident where he did not find either the vehicle or the accused. They observed only blood spots. Only on this observation, the inquiry officer gave a finding that the accident was caused due to rash and negligent driving. It is clear that inquiry report is not based on any clear evidence and mere inspection of the site of accident cannot suggest how an accident occurred much less it can show who was negligent in driving. It appears that report has been made by enquiry office on conjectures and surmises and same is nothing but perverse. Removal of the workman on the basis of such a domestic enquiry is on no basis and without any evidence. The workman has also brought on record order of DTC dated 19.12.73 under which it is clarified that employees placed under suspension due to criminal cases pending against them, need not to be charge sheeted and action of removal would be considered on the basis of decision of the criminal court. In this case the criminal court has acquitted the workman. The action of DTC in taking disciplinary action against the workman is in violation of the own policy. In the light of above discussion, I hold that the inquiry imposed is perverse and on the basis of an unproved misconduct. The issue is accordingly decided in favor of the workman and against the management....

8. While deciding issue No. 2, the Labour Court observed that the A.R. for the respondent failed to show as to how the removal of the petitioner was justified. It was further observed that the respondent could not bring on record any evidence attesting to the gainful employment of the petitioner during the interregnum period of adjudication of the industrial dispute. Accordingly, while holding the removal of the petitioner from the service as illegal and unjustified, the Labour Court vide award dated 1.6.2005 has directed the respondent to reinstate the petitioner with 25% back wages. The award was published on 23.8.2005 and became enforceable w.e.f. 22.9.2005.

9. It is noteworthy that the factual findings arrived at by the Labour Court, on the basis of evidence adduced before it, are not in dispute in the present case. In fact, the respondent - D.T.C. has not even assailed the findings and observations of the award dated 1.6.2005. The sole grievance of the petitioner is directed against the quantum of back wages that has been afforded to him by the Labour Court vide its award dated 1.6.2005.

10. To substantiate his plea, learned Counsel for the petitioner has drawn the attention of this Court to paragraph 14 of the award 1.6.2005 wherein the Labour Court has categorically observed that removal of the petitioner from service was illegal and unjustified and the workman was entitled to reinstatement with full back wages and other consequential benefits. However, while holding the petitioner entitled to full back wages, the Labour Court, immediately in the following sentence has directed the respondent to reinstate the petitioner with 25% back wages from the date of removal and other consequential benefits and continuity in service. It is contended that the words '25%' have been inserted in the award in hand writing and apparently appear to be an afterthought inasmuch as no reasons have been given as to why the workman was entitled to only 25% back wages.

11. For felicity of reference, paragraph 14 of the award dated 1.6.2005, which constitutes the operative portion of the award and is precisely the subject matter of the present petition, is reproduced hereunder:

14. In these circumstances, I am of the opinion that the workman is entitled to reinstatement with full back wages from the date of his removal and other consequential benefits with continuity of service. Accordingly, the management is directed to reinstate the workman Sh. Balwan Singh and to pay him 25% of the back wages from the date of his removal and other consequential benefits with continuity of service. The reference is answered accordingly. Copy of the award be sent to the appropriate Govt.

12. Learned Counsel for the petitioner has strenuously argued before this Court that the Labour Court, once having categorically observed that the petitioner was entitled to reinstatement along with full back wages, should have not entitled the latter to only 25% back wages. It is thus the case of the petitioner that ultimate relief of 25% back wages afforded to the petitioner by the Labour Court is incongruent with its own findings and observations holding the termination of the petitioner's services by the respondent as grossly arbitrary and unjust in law.

13. Learned Counsel for the respondent has refuted with vehemence the assertions put forth by the petition in support of his case. It is contended that the decision of the Labour Court directing 25% back wages to the petitioner was influenced by the gravity of the charges that were leveled against him. It is the case of the respondent that since the charges against the petitioner were grave, the Labour Court, in its discretion, did not consider it apposite to afford full back wages as relief in the instant case.

14. To further canvass his argument, counsel for the respondent submits that a domestic enquiry can be carried out against the workman even while a criminal case is still pending against him and the management need not stay the domestic enquiry pending decision of the criminal case. Learned Counsel for the respondent has also relied upon 2005(5) AD Delhi 671 in Braham Prakash Kalra v. N.T.P.C. and 2005 (3) J.C.C. 1696 (Delhi) K.Ganesh v. U.O.I., to show that a domestic enquiry can be initiated, even if a criminal case is pending. Learned Counsel for the respondent also contends that as observed by the Supreme Court in Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakar, acquitting in criminal case is not determinative of the commission of misconduct or otherwise and it is open to the authority to proceed with the disciplinary proceeding - notwithstanding acquittal in a criminal case. It per se would not entitle the employee to claim immunity from the proceeding. At the most the factum of acquittal may be circumstance to be observed while awarding the punishment. It would depend upon fact of each case and even that cannot have universal application.

15. The aforesaid contention of the respondent, I am afraid, appears to be out of context and does not help this Court inasmuch as the question herein is not whether the acquittal of the petitioner in the criminal case had any bearing on the domestic proceedings initiated against him. Neither has the respondent been asked to justify the veracity of the domestic proceedings conducted against the petitioner inasmuch as the Labour Court has already given its verdict in respect thereto. What calls for consideration in the present petition is as to what could have been the plausible circumstances in the present case that impelled the Labour Court to direct the relief of 25% back wages to the petitioner instead of the ubiquitous relief of full back wages.

16. It is no longer res integra that the relief of reinstatement and full back wages is not to be granted automatically in every case of illegal retrenchment. The paradigm shift in the approach of the Courts qua the aspect of back wages has been succinctly underscored by the Apex Court in U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain Pandey, reported at , as under:

17 ....[W] e may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.

....

22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be grant mechanically only because on technical grounds....

17. Echoeing the aforesaid dictum, the Apex Court, very recently in its decision J.K. Synthetics v. K.P. Aggarwal, reported at , has observed as under:

The manner in which "back wages" is viewed, has undergone a significant change in the last two decades.. They are no longer considered to be an automatic or natural consequence of reinstatement. There has also been a noticeable shift in placing the burden of proof in regard to back wages. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed.

xxx

Even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey . Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.

xxx

Decisions of the Supreme Court relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee.

18. The plausible factors determing the quantum of back wages to be awarded in a case where the services of the petitioner have been illegally retrenched have been lucidly identified in General Manager, Haryana Roadways v. Rudhan Singh, reported at . It would be useful to reproduce para 8 of the judgment:

8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for The plausible factor which would weigh with this Court in awarding back wages in the present case should include the time involved in the litigation and causes of the delay; the status of the management as a public body meant for public benefit; possibility of the worker being gainfully employed; nature of the alleged misconduct; ensuing financial burden; delay in rising an industrial dispute; duration of the employment and the nature of the employment.

19. Reliance, in this regard may also be placed, on my decision dated 24.9.2007 in WP(C)No. 7008/2007 entitled Rajesh Kumar v. Tech Books Electronics Services Pvt. Ltd., wherein, after considering the totality of circumstances viz. the short duration of the workman employment with the management, the apparent loss of confidence between the parties as well as the fact that the workman had been gainfully employed during the interregnum period of litigation, this Court confirmed the relief of lump sum compensation of Rs. 70,000/- awarded to the workman in lieu of reinstatement and full back wages. It was inter alia observed:

22. It is trite law that that the factum of illegal retrenchment does not ipso facto entitle a workman to the relief of reinstatement. Merely because the management has failed to comply with the mandatory provisions of Section 25F of the Industrial Disputes Act, 1947 will not warrant the relief of reinstatement in each and every case. It is no longer res integra that whilst adjudicating upon industrial disputes, especially those pertaining to illegal retrenchment, the Court is vested with considerable discretion, which discretion the Court must exercise both judicially and equitably. The correct approach to be followed in such cases by the Court is to provide such relief which will not only allay the aggrieved workman who has faced considerable hardships owing to his illegal retrenchment but will also ensure that the interests of the management in running its business are not jeopardised. It is trite that in doing a tight rope walk for balancing the interests of the workman on one end and the management on the other, the Court, whilst adjudicating upon cases of illegal retrenchment, cannot be expected to come out with the straight jacket relief of retrenchment in each and every case. Where the peculiar facts and circumstances of a case so demand, the Court, in the interest of justice may afford compensation in lieu of retrenchment and may even dispense with need for affording full back wages.

20. On a conspectus of the aforesaid decisions, it becomes clear that the relief of full back wages afforded in matters of illegal retrenchment is ought to be granted after taking into consideration the peculiar facts and circumstances of the case. Inasmuch as the question of relief to be afforded in matters pertaining to illegal termination is complexly entwined with a myriad of other issues, viz., time involved in litigation, possibility of being gainfully employed, nature of the alleged misconduct, financial burden on the workman, delay in raising the industrial dispute, duration of the workman's employment, etc., considerable discretion is vested in Courts of law in affording the relief of back wages, which discretion the Courts must exercise by supplementing it with sufficient and reasonable reasons. The reasons for exercising discretion must be cogent and must appear on the face of record. It would not be an exaggeration for me to state that any judicial decision, arrived in exercise of discretion, can stand the test of time only if such decision is buttressed with rationale reasons.

21. Without further ado, I have no hesitation in stating that the Labour Court in its award dated 1.6.2005 has left sufficient room for doubt by not making good any reason whatsoever which occasioned it to afford 25 % back wages to the workman/petitioner, especially, after coming to a conclusive finding that the petitioner had been illegally terminated and that in lieu thereof the petitioner was entitled to full back wages along with the relief of reinstatement. The perversity in the award dated 1.6.2005 is manifest in the casual manner in which the labour court has inserted the words '25% back wages' in his hand writing, whilst in the immediately foregoing sentence, it has held that the petitioner to be entitled to full back wages. If the labour court was intending to exercise its discretion, it ought to have supplanted the said discretion with some rationale reasons.

22. The petitioner, for obvious reasons, has pleaded with this Court to grant him full back wages. To substantiate his point, learned Counsel for the petitioner has heavily relied upon Hindustan Tin Works v. Employees, reported at , to canvas his contention that in matters pertaining to illegal termination of the services of a workman, reinstatement being the normal rule, it should be followed with full back wages.

23. Notwithstanding that the termination of the petitioner herein was illegal, his plea for full back wages does not convince me. As regards Hindustan Tin Works (P) Ltd., (supra), it needs to be clarified here that the said case does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring the termination of the workman to be illegal. Even otherwise, I am fortified in my view by U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain Pandey (supra), J.K. Synthetics v. K.P. Aggarwal (supra), General Manager, Haryana Roadways v. Rudhan Singh (supra), as delineated in the foregoing paragraphs, wherein it has been expressly observed that the factum of illegal termination does not ipso facto entitle a workman to full back wages and that the Court, in its discretion, may mould the relief to be afforded in such cases by having regard to the peculiar facts and circumstances of each case.

24. Keeping in mind that the parties herein have been in dispute for more than ten years now, I do not consider it apposite to remit the matter back to the Labour Court for fresh consideration qua the aspect of quantum of damages to be awarded to the petitioner. Let me, thus, consider the specific circumstances in the present case so as to decide what relief herein would subserve the ends of justice. In view of the findings of the Labour Court in its award dated 1.5.2006, it is incontrovertible that for no fault of the petitioner, not only his services were terminated but he was also forced to go through protracted litigation, considering the fact that the petitioner was removed from service on 07.03.1995 and the award was made and published on 23.08.2005. The petitioner in the interim period had been given a clean chit in the criminal case which was the raison' d' etre of the domestic enquiry initiated against him. Further, there is neither any pleading nor any evidence led by the respondent to enable this Court to draw any conclusion which would establish that the workman was gainfully employed pending adjudication of the Industrial Dispute or any other evidence which would otherwise disentitle the workman to the grant of the full back wages. It is also not in dispute that despite reinstatement, the petitioner was constrained to retire on medical grounds w.e.f. 31.3.2006. In view of all these circumstances, I am of the view that a meagre sum of 25% back wages that has been awarded to the petitioner by the labour court would not be sufficient antidote to assuage the tremendous hardship that he has endured whilst pursuing the industrial dispute. Consequently, the writ petition is allowed and the award dated 01.06.2005 is modified to the extent that the petitioner would be entitled to 50% backwages from the date of his termination.

25. The parties, however, shall bear their own costs.