Delhi Transport Corporation vs Om Prakash
2009 Latest Caselaw 629 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 4315/2003

                                     Judgment delivered on: 24.02.2009
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Shri Om Prakash                                ...... Petitioner.
                                  Through: Mr.Rajesh Goyal, Advocate.

                     versus

Delhi Transport Corporation & Others           ..... Respondent
                          Through: Mr. J.N. Aggarwal, Advocate.
                                    Mr. Sunil Bagai, Advocate for R-
                                    3/Labour Commissioner.

+             W.P. ( C ) No. 688/2004

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Delhi Transport Corporation                        ...... Petitioner.
                                      Through: Mr.       J.N.     Agarwal,
                                      Advocate

                     versus

Sh. Om Prakash                             ..... Respondent
                                      Through:        Mr.   Rajesh    Goyal,
                                      Advocate.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                          Yes

2.     To be referred to Reporter or not?                       Yes
W.P.(C) No.4315/2003 & 688/2004                                      Page 1 of 9
 3.     Whether the judgment should be reported
       in the Digest?                                                Yes

KAILASH GAMBHIR, J. (Oral)

*

1. This order shall dispose of two writ petitions --- one bearing

No. 688/2004 filed by the DTC challenging the order dated 23.5.2003

whereby the application under Section 33 (2) (b) of I.D.Act filed by

the DTC/Management was dismissed and the other filed by the

workman Om Prakash vide writ petition No. 4315/2003 seeking

directions for his reinstatement with full back wages pursuant to the

dismissal of the application of the former filed under Section 33 (2)

(b) I.D. Act.

2. Brief facts relevant for the decision of both these petitions

are as under:-

The petitioner in W.P. No. 4315/03 and respondent in

W.P. No. 688/2004 (hereinafter referred to as workman) was

employed with the DTC/Management as driver and was removed

from his services on 12.2.1993 on the allegations that on 20.3.1991 at

about 15.15 hours he along with some other co-employees

manhandled Sh. Harish Chand Gupta, the then Depot Manager and

Sh. P.K. Rai, the then Assistant Enginer, Nand Nagri Depot and

threatened them with dire consequences. This act of the workman

was alleged by the DTC/Management as misconduct within the

meaning of para 19 (g) of the standing orders governing the conduct

of DTC employees and pursuant to which the Disciplinary Authority

removed him from service vide order dated 12.2.1993 and remitted

full one month wage to him by way of money order. For approval of

its order/action, the DTC/Management moved the application under

Section 33 (2) (b) of I.D. Act before Presiding Officer, Industrial

Tribunal-II, Karkardooma Courts, Delhi but the said application was

dismissed. Aggrieved by the said order, on the one hand, the

DTC/Management filed writ petition No. 688/2004 and on the other

hand, workman moved Writ petition No. 4315/2003 for seeking

directions to the DTC/Management to reinstatement him with full

backwages pursuant to the dismissal of the application under Section

33 (2) (b) of I.D. Act.

3. Mr. J.N. Aggarwal, Counsel for the DTC Management

submits that merely because the DTC Management was not found to

have paid a sum of Rs.25/- as part of the salary to the workman the

Tribunal rejected the application under Section 33 (2) (b) of the I.D.

Act. The contention of the counsel for the Management is that as far

as the mis-conduct of the workman is concerned, the inquiry against

him was held to be legal and valid vide separate order dated

24.2.2003 passed by the same Tribunal but as far as the full one

month wage was concerned, the Tribunal came to the conclusion that

the full salary of one month was not paid to workman being short of

special pay of Rs.25/- as part of the salary and therefore, in the

absence of the same the approval of the Management‟s action was

rejected. Counsel thus urges that once the substantial amount of one

month wage was paid by the Management except the special amount

of Rs.25/- which was left to be paid by the Management, that alone

would not have come in the way of the Tribunal in granting the said

approval. In support of his argument counsel for the petitioner placed

reliance on the judgment of the Apex Court in (1990) SCC 314

Bharat Electronics Ltd. Vs. Industrial Tribunal, Karnataka.

4. Refuting the said submissions made by the counsel for the

Management, the counsel for the workman states that it is not a

question of the extent of the sum not being paid by the petitioner as

the mandate of the law is full payment of one month wage and

admittedly the Management failed to pay the full salary for one

month same being short of special pay of Rs.25/-. Counsel further

contends that the said amount was being paid to the workman

towards special pay right from the year 1982, since the time he had

undergone sterilization operation. Counsel thus submits that the

special pay was a part of his one month wages and as per the

requirement of Section 33 (2) (b) I.D.Act he was entitled to the same

and admittedly the said amount was not paid to the workman and

therefore the Tribunal rightly came to the conclusion that the

approval sought by the Management „deserved rejection‟. Counsel

further submits that the judgment of the Apex Court is not applicable

to support the case of the Management, rather it supports the case of

the workman as the Court has clearly observed as under:-

"It is, of course, risky for the Management to raise it as to pay even a paisa less than the month‟s wages due would be fatal to its seeking permission under Section 33 (2) (b) I.D Act as it is for the management to establish that the sum paid to the workman under Section 33 (2) (b) represented full wages of the month following the date of discharge of dismissal."

5. Counsel further submits that even otherwise the issue

before the Apex Court in the said case was concerning the payment of

Rs.12/- towards the night shift allowance while in the facts of the

present case, the shortfall of Rs.25/- was towards the part of the

wages which was being paid by the management and not towards any

allowance to be earned by the workman for putting any extra duties.

Counsel for the respondent also placed reliance on the judgment of

the Karnataka High Court reported in 1984 LAB. I.C. 1358

Karnataka Agro Industries Corporation Ltd. Bellary Vs.

Presiding Officer, Industrial Tribunal, Banglore and another.

Counsel thus states that the workman is entitled to back wages w.e.f.

the date of his termination till the date of his superannuation which is

2.9.2005.

6. I have heard counsel for the parties and gone through the

record.

7. The mandate of Section 33 (2) (b) of the I.D. Act is that no

workman can be discharged or dismissed unless he has been paid

wages for one month and indisputably the wages in the present case

paid by the DTC/Management were not full wages as there was a

shortfall of Rs.25/-. The Apex Court in the case of Bharat

Ranganath Mishra (Supra) has clearly held that in such a case it is

risky for the management to pay even a single paisa less than the

month‟s wages as the same would be fatal for seeking permission by

the Management under Section 33 (2) (b) of the I.D.Act., as the sum

paid to the workman under this Act represents full wages of the

month following the date of his discharge or dismissal. It is no doubt

true that the full one month wages as provided under Section 33 (2)

(b) of the I.D. Act are conspicuously for the month to follow so as to

grant sufficient time to the workman to secure his employment during

that period and wages for such a month are not for the month

preceding the date of termination. The mandate of law is also for

payment of full wages and not partial or incomplete wages. The

judgment of the Karnataka High Court cited by the respondent is

more near to the facts of the present case as therein also there was

shortfall of one increment which had since fallen due but was not

paid and the High Court came to the conclusion that the increment to

which the employee became entitled was part of his wages in the

entire one month salary which was required to be paid by the

management under Section 33 (2) (b) of the Act. Similarly in the facts

of the present case, the petitioner has failed to pay the full wages of

one month and it is not that the special pay which was regularly being

paid by the management was required to be paid for doing some extra

duties or for some extra job but the same was being paid on account

of the fact that the respondent had undergone sterilization operation

and the special pay of Rs.25/- became part of wages of the

respondent. Nowhere the DTC/Management has given any

explanation as to why and in what circumstances the said amount of

Rs.25/- was not included in the one month‟s salary of the respondent.

8. In the light of the above, the petition filed by the

DTC/Management is hereby dismissed being devoid of merit and the

petition filed by the respondent workman in WP (C ) No. 4315/2003 is

allowed.

9. Mr. J.N. Aggarwal counsel for the Management states that

the Management has already paid the amount of minimum wages to

the workman w.e.f. the date of the award till 1.9.2005 in terms of the

direction given by this court vide order dated 4.9.2006. Mr. Aggarwal

further submits that the respondent workman has already reached

the age of superannuation on 31.8.2005

10 . Taking into consideration the above factual position no

directions for reinstatement of the respondent can be given since

already he has attained the age of superannuation on 31.8.2005.

Further the petitioner has also received the arrears of wages w.e.f.

the date of his termination till the date of the award i.e. 1.9.2005, and,

therefore, it is directed the petitioner shall pay 50% of the back wages

from the date of his termination till the date of his superannuation

after giving an adjustment of the amount already paid by the

petitioner in terms of the directions of this court vide order dated

4.9.2009. The payment shall be paid by the management to the

workman within a period of two months, failing which the workman

shall be entitled to interest @ 12% per annum on the said arrears of

the amount. The workman shall also be entitled to be paid other

retrial benefits as are permissible under the law.

With the above directions, the petition No. W.P ( C )

4315/2003 is disposed of in terms of above directions and the petition

No. 688/2004 is hereby dismissed being devoid of any merit.

February 24, 2009                              KAILASH GAMBHIR, J
pkv