Delhi Transport Corporation vs Sh.Rohtash Singh (Ex-Driver)
2009 Latest Caselaw 2005 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                  Writ Petition (Civil) No. 23841/2005


                                     Date of Decision : 13.5.2009

DELHI TRANSPORT CORPORATION        ...... Petitioner
                        Through : Mr.J.S.Bhasin with
                        Ms.Rashmi Priya, Advocates.


                               Versus

SH.ROHTASH SINGH (EX-DRIVER)        ...... Respondent
                          Through : Mr.Gurbir Singh,
                          Advocate.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers 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

V.K. SHALI, J. (Oral)

1. The petitioner in the instant writ petition has challenged

the award dated 29.8.2005 passed by the Industrial Tribunal in

ID No.50/2004 in case titled The Management of M/s DTC Vs.

Its Workman Sh.Rohtash Singh. By virtue of the aforesaid

award, the learned Tribunal has held that the termination of

service of the workman under Clause 14 (10) (c) of the Delhi

Road Transport Act (Conditions of Appointment and Service)

Regulations, 1952 (hereinafter referred to as Regulations) without

giving an opportunity of being heard was held to be illegal and

unjustified on the part of the petitioner and accordingly, the said

termination was set aside and the respondent/workman (since

deceased) was directed to be reinstated with continuity of service

and with all consequential benefits along with 50% of the back

wages. The petitioner /Management feeling aggrieved by the

aforesaid award and has accordingly challenged the same.

2. I have heard the learned counsel for the parties and

perused the record.

3. The first contention which has been raised by the counsel

for the petitioner/Management is that admittedly the

respondent/workman (since deceased) was deemed to have

resigned w.e.f. 23.10.1990 on account of his continued absence

despite intimation having been sent to him repeatedly. It is

urged that the respondent/workman slept over the matter and

approached appropriate Government belatedly after a lapse of 14

years when the reference was made on 26.5.2004 to the

Industrial Tribunal with regard to the legality of the deemed

resignation under the aforesaid clause. It was urged by the

learned counsel for the petitioner that the very fact that reference

was made after a period of 14 years, the reference itself ought not

to have been considered and answered by the learned Labour

Court on account of inordinate delay and laches and in any case

merely on account of the fact that the petitioner /Management

did not assail the reference by the appropriate Government by

filing a writ petition in the High Court, it did not preclude the

petitioner /Management from raising this issue even after the

final award having been passed.

4. As a subsidiary to this submission, it was further

contended by the learned counsel for the petitioner that even if

the legality of the reference made to the learned Labour Court is

given up on account of inordinate delay even then on equity also

the respondent /workman having approached the learned

Tribunal belatedly, he was not entitled to payment of any wages

for the said period of delay till the time the reference was made.

5. The learned counsel for the respondent/workman has

contested these submissions of the counsel for the petitioner on

the ground that if the petitioner/Management felt aggrieved from

the reference itself it ought to have challenged the same earlier

by filing the writ petition. By not having done so, it is estopped

now from assailing the same after the award having been passed.

With regard to the question of payment of back wages, it was

urged that the learned Labour Court has already taken into

consideration the factum of delay attributable to the respondent

/workman while giving him the benefit of back wages and has

appropriately reduced the same to 50%. Even if it is conceded

that there may be some merit in the submission of the learned

counsel for the petitioner even then some percentage of back

wages ought to be given to the legal heirs of the deceased

workmen.

6. I have considered this submission of the respective sides. I

agree with the counsel for the petitioner that the respondent

/workman having remained silent for a period of 14 years with

regard to the grievances of his illegal termination by invoking

clause 14(10) (c) of the Regulations, he is not entitled to any back

wages for the said period. As a matter of fact, the petitioner

ought to have approached the High Court immediately after the

reference was made and assailed the same and even if the same

is not assailed by the petitioner earlier, the Court cannot put a

premium on the conduct of the respondent/workman by giving

him the benefit of back wages for the period for which he had

gone into slumber. Therefore to that extent, this Court feels that

the award dated 29.8.2005 deserves to be modified.

7. The next question which arises for consideration is that the

petitioner has been directed to reinstate the respondent

/workman by the impugned award but it is not in dispute that

though the award has been passed on 29.8.2005, however, the

respondent/workman is admitted to have expired on 10.5.2007.

His legal heirs have been brought on record but the benefit of

reinstatement cannot be given to the LRs of the petitioner and to

that extent the award of the learned Labour Court cannot be

implemented and has become infructuous by subsequent event.

8. The third component of the benefit which has been granted

by the Labour Court is the benefit of continuity of service with all

consequential benefits. Though the Supreme Court in case

titled D.K.Yadav V.J.M.A. Industries Ltd. SC 1993 P-696 LLJ

Vol. 2 page 696 has not approved of the practice of the learned

Labour Court or the Industrial Tribunal to grant mechanically

the benefit of continuity of service and consequential benefits

without realizing that it has very vital effect on the functioning of

the Organization inasmuch as the workman who is given such

benefit without having rendered the actual services, he becomes

entitled to be considered for promotional post without having

actually worked in the feeder cadre itself. Therefore, this

impinges on the efficiency of the Organization itself. This

question of continuity of service and consequential benefits in

the instant case becomes redundant on account of the fact that

the respondent /workman is no more. The only question

therefore, remains regarding the payment of pensionary benefits.

9. The learned counsel for the petitioner has very fairly

conceded that the Supreme Court in case titled DTC Vs.

Prakash Chand in Civil Appeal Nos. 7110-7111/2004has

passed a consent order where the services of the employees of

the petitioner which were dispensed with by invoking clause

14(10) (c) of the Regulation were restored back by the petitioner

/Management with the condition of the workman forgoing their

claim for back wages or limiting their relief in other categories to

certain pensionary benefits to themselves or to their legal heirs

granted them pensionary benefits only.

10. One such category visualized by the aforesaid order of the

Apex Court is that where the workman has died during the

pendency of litigation and the benefit of continuity of service with

consequential benefits has been limited only to the extent of

payment of pensionery benefits.

11. In the instant case also the operation of the impugned

award with regard to the continuity of service and the

consequential relief is limited only to the extent of payment of

pensionary /retiral benefits to the LRs of the deceased workman

whose name stand already brought on record. Accordingly, the

impugned award stands modified to that extent also.

12. It has now been urged by counsel for the petitioner that

though the respondent /workman has been denied the wages for

the period of 14 years resulting in making of reference to the

learned Industrial Tribunal but the respondent/workman had

filed CM No.4645/2007 on 28.3.2007 under Section 17-B of the

Industrial Disputes Act for grant of the last drawn

wages/minimum wages in terms of the provisions under Section

17-B of the ID Act till the time of his death which happens to be

10.5.2007.

13. I have heard the learned counsel for the parties on the said

application also. The prayer of the respondent /workman with

regard to the grant of statutory benefit in terms of Section 17-B

of the Act from the date of the award i.e. 29.8.2005 till the date of

his death which is 10.5.2007 seems to be a reasonable and in

accordance with the provisions of law inasmuch as the petitioner

had assailed the impugned award and obtained stay and

therefore, the respondent /workman was entitled to the statutory

benefits.

14. It is not in dispute that the last drawn wages of the

respondent /workman were Rs.2,900/- and that he died on

10.5.2007. It has been stated that the respondent/workman has

been unemployed since the date of termination and continues to

be so. There is a supporting affidavit in this regard. Therefore,

the onus was on the petitioner/Management to show that the

respondent was gainfully employed anywhere and earning

money. Since this has not been done, therefore, this Court is

inclined to grant the benefit of the last drawn wages i.e.

Rs.2,900/- per month for the period during which the award has

been passed and till the time he has actually expired. The

aforesaid amount so calculated for the period from 29.8.2005 to

10.5.2007 shall be granted by the petitioner to the LRs of the

deceased respondent/workman by way of a cheque/pay

order/demand draft within six weeks.

15. It is made clear that in case the aforesaid amount is not

paid within time stipulated, it will carry an interest @ 5% per

annum from the date of the award till the actual payment is

made.

16. With these directions, the award dated 29.8.2005 passed

by the Industrial Tribunal in ID No.50/2004 in case titled The

Management of M/s DTC Vs. Its Workman Sh.Rohtash Singh

stands modified to the extent that the LRs shall be entitled to

only pensionary benefits.

No order as to costs.

V.K. SHALI, J.

MAY 13, 2009 RN