Delhi Transport Corporation vs Shri Nand Kishore
2009 Latest Caselaw 2724 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) No. 16265/2006

%                 Date of Decision: 20 July, 2009


# Delhi Transport Corporation
                                                   ..... PETITIONER
!                 Through: Ms. Mini Pushkarna, Advocate.

                                   VERSUS

$ Shri Nand Kishore
                                                  .....RESPONDENT

^                 Through: Ms. Rashmi B. Singh, Advocate.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not? YES

3. Whether the judgment should be reported in the Digest? YES

S.N.AGGARWAL, J (ORAL) This writ petition filed by Delhi Transport Corporation (the petitioner

herein) is directed against an award dated 28.11.2005 passed by Mr. O.P.

Saini, POLC VII, Delhi directing reinstatement of the workman (the

respondent herein) with 75% back wages.

2 During the pendency of the present writ petition, the

respondent/workman has been permitted to join duties with the

petitioner corporation w.e.f. 23.02.2004 without prejudice to the rights

and contentions of the parties. He was permitted to join duties with the

petitioner corporation pursuant to an order under Section 17-B passed by

this Court.

3 Arguments in the main petition have been heard today.

4 Brief facts of the case relevant for the disposal of this writ petition

are that the respondent was appointed as a Conductor with the petitioner

corporation w.e.f. 18.07.1982. He was served with a charge-sheet dated

27.10.1993, which is Annexure P-3 at page 42 of the paper book. The

charge attributed to the respondent was that he remained absent from

duty for 32 days during the period from 01.01.1993 to 30.06.1993 and

out of these 32 days, he remained absent for one day unauthorizedly and

31 days leaves were rejected due to various reasons. Domestic inquiry

was held against the respondent in which he was found guilty of charges

of unauthorized absence leveled against him. The disciplinary authority

after taking into account the report of the inquiry officer and other

relevant material decided to remove the respondent from service and he

was accordingly removed from service of Delhi Transport Corporation

w.e.f. 18.07.1994.

5 The respondent, aggrieved by his removal from service of the

petitioner, raised an industrial dispute which was referred by the

appropriate Government for adjudication to the Labour Court. The Labour

Court then presided over by Mr. C.K. Chaturvedi, vide its order dated

29.01.2005 decided the inquiry issue in favour of the workman and

against the management. Thereafter, vide impugned award dated

28.11.1995, the Labour Court then presided over by Mr. O.P. Saini

answered the reference holding that the respondent is entitled to

reinstatement with 75% back wages.

6 Ms. Mini Pushkarna learned counsel appearing on behalf of the

petitioner corporation has contended that the court below did not give

any opportunity to the petitioner to prove the misconduct of the

respondent after deciding the inquiry issue against it. I have gone

through the impugned award and perusal of para 13 of the said award at

page 35 of the paper book reveals that the opportunity that was given to

the management was to lead evidence to show that the workman was

gainfully employed from the date of his removal from service. Such an

opportunity as is mentioned in para 13 of the impugned award does not

meet the requirement of law. The law is well settled that once an inquiry

issue is decided by the Labour Court against the management, then the

management has to be afforded an opportunity to prove the misconduct

against the delinquent employee. This opportunity seems to have not

been given by the court below to the management. For that reason, I am

of the opinion that the impugned award cannot be sustained in law. The

said award suffers from perversity as no opportunity to prove the

misconduct of the delinquent employee was given to the management.

Under the circumstances, this Court is of the considered opinion that

ends of justice shall be adequately met by remanding the case back to

the court below for giving an opportunity to the management to prove

the misconduct against the respondent and in the meanwhile, direct the

petitioner to continue to allow the respondent to work with it without

prejudice to its rights and contentions till the dispute is decided afresh by

the court below after giving an opportunity of hearing to both the parties.

7 For the foregoing reason, the impugned award dated 28.11.2005

passed by Mr. O.P. Saini, then Presiding Officer, Labour Court VII, Delhi is

hereby set aside. The case is remanded back to the court below for fresh

decision on merits after giving opportunity of hearing to both the parties.

The Court below is directed to decide the dispute afresh as expeditiously

as possible preferably within six months to be reckoned from the date

given to the parties for their appearance before it. In the meanwhile, the

parties are directed to continue with the same arrangement relating to

working of the respondent with the petitioner and the same shall be

without prejudice to their rights and contentions on merits and will not

confer any special equity in favour of the respondent in the event of the

petitioner's proving misconduct against him. The parties are directed to

appear before the court below for further directions at 2:00 PM on

27.07.2009.

8 This writ petition stands disposed of in terms referred above. The

parties are left to bear their own costs.

9 A copy of this order be sent to the Labour Court/ successor court

forthwith for information and necessary compliance.

JULY 20, 2009                                 S.N.AGGARWAL, J
'a'