Delhi Transport Corporation vs Shri Roop Singh
2009 Latest Caselaw 1397 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+            WP (C) Nos. 3823/2000

%                              Judgment delivered on: 15.04.2009


Delhi Transport Corporation  ...... Petitioner
                    Through: Ms. Arti Mahajan              Shedha
                    Advocate

                  versus

Shri Roop Singh                           ..... Respondent
                            Through: Mr. S.S. Tomar, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.   Whether the Reporters of local papers may            No
     be allowed to see the judgment?

2.   To be referred to Reporter or not?                  No

3.   Whether the judgment should be reported             No
     in the Digest?

KAILASH GAMBHIR, J. (Oral)

*

1. By way of this petition filed under Article 226 of the

Constitution of India, the petitioner seeks to challenge the

impugned award primarily on the ground that due to the

negligence of representing the DTC before the Labour Court,

the petitioner could not lead the evidence to prove misconduct

on the part of the respondent. Ms. Aarti Mahajan Shedha

counsel for the petitioner submits that serious allegations of

cheating were leveled against the respondent as he had issued

sold tickets to almost 10 passengers travelling in his bus who

were intercepted by the checking staff of the petitioner.

Counsel further submits that the statement of the passengers

was obtained in the presence of respondent No.1 and he had

also signed the said statements. His cash was also found short

when the same was checked by the said checking staff.

Necessary remarks were also given by the checking staff on

the statements and necessary Chargesheet was also issued

under his signatures. Counsel thus submits that if the matter

is remanded back to the Labour Court then the petitioner will

be able to establish the said mis-conduct on the part of the

respondent who had issued the sold tickets to the ten

passengers.

2. Mr. S.S. Tomar, counsel for the respondent, on the

other hand, strongly refutes the submissions made by the

petitioner. He states that at least 11 opportunities were

granted to the petitioner but the petitioner failed to avail the

said opportunities and therefore no option was left with the

court but to close the evidence of the petitioner. Counsel

further submits that the petitioner has not offered any

plausible explanation to show as to why the petitioner had

failed to adduce evidence despite grant of numerous

opportunities in this regard.

3. I have heard counsel for the parties and perused the

record.

4. Vide order dated 16.10.1999 dismissal of the

workman by the petitioner was held illegal and unjustified and

directions were given to the petitioner to reinstate the

petitioner/workman with continuity of service and grant of full

back wages. Perusal of the award shows that the Labour

Court found that the enquiry officer did not follow the laid

down procedure of enquiry and even reasonable opportunity

was not afforded to the respondent workman to defend the

enquiry proceedings. The workman had also served the

demand notice dated 28.08.1993 upon the petitioner but the

same was also not responded by the management. Under

these circumstances, the respondent workman had filed an

application before the Conciliation Officer and thereafter the

reference was made for adjudication of the dispute before the

Labour Court. On the basis of the pleadings of the parties

issues were framed and vide order dated 8.5.1998 the issue

No.1 was treated as preliminary issue. The petitioner

management was given adequate opportunity to lead its

evidence on the preliminary issue i.e. on 15.1.1996, 27.6.1996,

7.2.1992 and on 4.3.1997 but it failed to lead any evidence and

ultimately the evidence of the petitioner management on

preliminary issue was directed to be closed, therefore, the said

preliminary issue was decided against the petitioner and the

enquiry was held to be vitiated being in violation of the

principles of natural justice. Thereafter, fresh opportunity was

granted to the petitioner to lead evidence so as to prove mis-

conduct of the respondent before the Labour Court but even

that opportunity was not availed by the petitioner despite

number of opportunities granted in this regard. On 13.4.1999

last opportunity was granted to the petitioner and the matter

was adjourned on 13.5.1999 but still no evidence was led by

the petitioner, therefore, evidence of the petitioner was again

closed. In the absence of any evidence led by the petitioner

management on the preliminary issue as well as on main issue

subsequently the Labour Court came to the conclusion that the

petitioner management failed to prove mis-conduct on the part

of the respondent. In these circumstances, the dismissal of

the respondent workman was held to be illegal and unjustified

and accordingly directions were given to the management to

reinstate the respondent with continuity of service with full

back wages.

5. Nowhere in the present petition any explanation has

been offered as to why no evidence was led by the petitioner

when number of opportunities were granted by the court. I

do not find any merit in the explanation offered by the

petitioner that the advocate representing the petitioner did not

properly communicate the progress of the case. In all such

cases where there is a lapse on the part of a party it has

become a practice to put blame on the previous counsel. The

petitioner being a Government Corporation has a complete

back up of legal staff and nowhere it has been stated that why

the matter was not effectedly prosecuted by the legal

department of the petitioner and if not what action was taken

against the staff member due to whose negligence the evidence

was not led for such a long period of three years. Unless there

is ample proof to show negligence on the part of a counsel such

a practice is highly deprecated. In these circumstances, I am

not inclined to remand the matter back after a gap of a period

of ten years. However, since the matter could not be tried on

merits although there were serious charges of cheating leveled

against the respondent, therefore, I am not inclined to uphold

the directions of the Labour Court so far the award of grant of

full back wages are concerned. This view is also supported by

the recent judgments of the Apex court where in such like

cases 50% or less back wages a compensation has been

awarded.

6. In the light of the above position the impugned

award is upheld but with the modification to direct grant of

50% back wages by the petitioner in favour of the respondent.

Except the said modification, I do not find there is any merit in

the present petition. The petitioner shall implement the

impugned award as well as the order of this court within one

month from the date of this order.

7. In terms of the above directions, the petition is

disposed of.

April 15, 2009                         KAILASH GAMBHIR, J.
pkv