Sh. Rajinder Singh vs Delhi Transport Corporation
2009 Latest Caselaw 2143 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     WP (C) Nos. 7918/2003

                                Judgment reserved on:06.04.2009

%                               Judgment delivered on:19.05 ,2009


Sh. Rajinder Singh                         ...... Petitioner
                            Through: Ms. Kittu Bajaj, Advocate


                      versus


Delhi Transport Corporation                   ..... Respondent
                    Through: Mr. J.S. Bhasin, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

2.      To be referred to Reporter or not?                   Yes

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

KAILASH GAMBHIR, J.

*

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

Constitution of India the petitioner seeks to challenge award

dated 5.11.2001 passed in I.D. No. 247/1989 in which the

Labour Court directed reinstatement of the petitioner with

continuity of service and grant of 25% of the back wages.

Feeling aggrieved with the said award so far full back wages

were denied to the petitioner, the present petition has been

preferred.

2. Brief facts of the case relevant for deciding the

present petition are as under:-

The petitioner/workman was employed as Conductor

in 1979. On 13.12.1985 he was served with a chargesheet in

which it was alleged that on 2.11.1985 while he was performing

duty in bus No. 1120 on route No. 405(DN), the checking

officials intercepted the bus at Madanpur at 11.20 hour and

found that 4 passengers alighted from the bus without tickets. It

was alleged that the petitioner had collected fare from them but

did not issue tickets and that subsequently 4 unpunched tickets

were issued and cash of Rs.1.05 was found short. The petitioner

denied that he had collected any fare from the said passengers.

The petitioner was removed from his service vide order dated

16.12.1987. Show cause notice was issued to the petitioner and

he submitted explanation which was not considered. The

dispute was referred to the Labour Court and vide the impugned

award directed the management to reinstate the petitioner with

continuity of service with 25% back wages. Aggrieved with the

non-denial of full back wages the petitioner preferred this

petition.

3. Ms. Kittu Bajaj, counsel for the petitioner submitted

that the Labour Court denied the full back wages only on the

ground that the petitioner workman in his cross-examination

disclosed his earning between Rs.50-20 per day by selling

vegetables which fact was not mentioned by the petitioner either

in his statement of claim or in his examination-in-chief adduced

by way of filing an affidavit. The contention of the counsel for

the petitioner is that the approach adopted by the Ld. Labour

court suffers from illegality and perversity as the court did not

appreciate that in the absence of an employment the petitioner

with a view to sustain himself and his family members started

selling vegetables and such self-employment cannot be

considered as a gainful employment to be treated at par with

gainful employment in any establishment. Strengthening her

argument further the counsel contended that once the Labour

Court came to the conclusion that termination of the petitioner

was illegal and unjust then full back wages could not have been

denied to him merely on account of admission of the petitioner in

cross-examination disclosing his income of paltry amount

through sale of vegetables. Counsel also submitted that the

onus is on the employer to show gainful employment of the

petitioner and no such material was placed on record by the

respondent in this regard and therefore the petitioner was

entitled for the grant of full back wages. Non-disclosure by the

petitioner of the said source of income by the sale of vegetables

in his statement of claim or in his evidence cannot be considered

so fatal to deny him the full back wages as the said source

cannot be equated with gainful employment in any

establishment.

4. Justifying, filing of the second writ petition, the

counsel submitted that filing of second petition by the petitioner

cannot be held barred by the principles of res judicata as the

withdrawal of the earlier petition by the petitioner was on

account of the fact that in the earlier petition the petitioner

failed to mention the fact about his reinstatement and grant of

25% back wages by the respondent which fact was later on

explained by the petitioner in the present petition. In support of

her argument counsel for the petitioner placed reliance on the

following judgments:-

(1984) 4 SCC 635 Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others AIR 1996 SC 2367 State of Maharashtra and another Vs. M/s Natioinal Construction Company, Bombay and another 102 (2003) DLT 60 Jaipal Sharma & Anr. Vs. The P.O., Labour Court No. VIII & Anr.

JT 2007 (5) SC 556 Krishi Utpadan Mandi Samity, Manglor Vs. Pahal Singh (2008) 9 SCC 486 Talwara Cooperative Credit and Service Society Ltd. Vs. Sushil Kumar

5. Refuting the said submissions of the counsel for the

petitioner, Mr. J.S. Bhasin, counsel for the respondent

submitted that vide orders dated 23.7.2003 the petitioner had

withdrawn the earlier petition without seeking leave of the court

and therefore the second petition on the same cause of action

impugning the same award cannot be maintained. It was for the

petitioner to have disclosed the reasons for the withdrawal of

the writ petition and to take leave of the court to file a fresh

petition but no such steps were taken by the petitioner,

therefore, the present petition as per the counsel for the

respondent is barred by the principles of constructive res

judicata and therefore the same merits dismissal on this sole

ground. On the issue of denial of full back wages, counsel for

the respondent submitted that there has been a paradigm shift

in the recent approach of the Apex Court and in catena of

judgments the Supreme Court has held that in appropriate cases

the courts can either grant reinstatement without back wages,

back wages without reinstatement or reinstatement with some

back wages or the grant of suitable compensation depending

upon the facts of each case. In support of his argument counsel

for the respondent placed reliance on the following judgments:-

(2008) 3 SCC 304 Executive Engineer, Public Health Division Vs. Kumesh (2008) 12 SCC 169 Depot Manager Andhra Pradesh State Road Transport Corporation and Another Vs. V. Surender (2005) 6 SCC 36 A.P. State Road Transport Corporation and others Vs. Abdul Kareem

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

record.

7. It is not in dispute that the petitioner had earlier

challenged the impugned award by filing a writ petition bearing

No. 4565/2003 which, was withdrawn by him as would be

evident from the order dated 23.7.2003 passed by this court.

The explanation given by the petitioner for filing the second

petition does not appear to be totally illogical. In compliance of

the award, the petitioner infact was reinstated by the

respondent on 19.12.2002 and was also paid 25% back wages in

the month of January, 2003. The petitioner failed to mention

these facts in the earlier petition and no doubt these facts were

material and should have been disclosed in the first petition.

Although, no leave was obtained by the petitioner nor any

perceptible reasons were disclosed for withdrawing the first

petition yet since notice was not directed on the first petition

on the respondent and the petitioner was withdrawn at the stage

of admission itself, therefore, I do not agree with the argument

of the counsel for the respondent that the second petition is hit

by the principles of constructive res judicata. Explaining the

principles of Res-judicata, the Apex Court in State of

Maharashtra & Anr Vs. M/s National Construction

Company, Bombay & Anr., AIR 1996 SC 2367 held as

under:-

6. We may first dispose of the plea based on Section 11, Explanation IV, of the Code. That section deals with the doctrine of res judicata and provides that any matter which might or ought to have been made a ground for defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Since the plea of res judicata can be disposed of on a narrow ground, it is not necessary to examine the ambit of Explanation IV. The main text of Section 11 reads thus:

"11. Res Judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

The important words are "has been heard and finally decided". The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata.

8. This statement of the law by the High Court is, with respect, incorrect in view of the decision of this Court in Sheodan Singh v. Daryao Kunwar1 (AIR at p. 1336 : SCR at p. 307) where, while considering the meaning of the words "heard and finally decided", used in Section 11 of the Code, it was held:

"Where, for example, the former suit was dismissed by the trial court for want of jurisdiction ... or on the ground of non-joinder of parties ... and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit." (emphasis supplied)

This Court in its recent decision Inacio Martins v. Narayan Hari Naik2 has reiterated this proposition. It is, therefore, clear that the dismissal of the short cause suit and the subsequent appeal could not have operated as a bar to Special Civil Suit No. 27 of 1983. The plea based on the principle of res judicata fails.

8. In the light of the above legal position, I do not find

any merit in the submission of counsel for the respondent that

the present petition is barred by the Principles of Res-Judicata.

9. Adverting to the second issue of demand of full back

wages, In G.M., Haryana Roadways v. Rudhan Singh,(2005)

5 SCC 591 the Apex Court held that there is no rule of thumb

that in every case where the Industrial Adjudicator gives a

finding that the termination of service was in violation of Section

25-F of the Act, entire back wages should be awarded. The

relevant para of the said judgment is referred as under:-

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 240 days in a calendar year.

9. In URSRTC Ltd. Vs. Sharda Prasad Mishra -

(2006) 4 SCC 733 also the Apex Court took the view that it

would depend upon the facts and circumstances of each case to

determine the question with regard to the payment of back

wages keeping in view the principles of equity and good

conscious. The relevant para of the said judgment is referred as

under:-

"16. From the above cases, it is clear that no precise formula can be adopted nor 'cast-iron-rule' can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement of service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order."

10 . In the judgment of the apex court reported in (2008)

9 SCC 486 Talwara Cooperative Credit and Service Society

Ltd. Vs. Sushil Kumar after taking into consideration the facts

of the case, the Supreme Court awarded compensation of Rs.2

lakhs instead of directing reinstatement with full back wages.

In the present case already the respondent has complied with

the direction given by the Labour Court by reinstating the

petitioner in his employment and also by making the payment of

25% of the back wages. The petitioner did not feel satisfied so

far the petitioner was denied the grant of full back wages. The

Labour Court found the termination of the petitioner from his

service being illegal on the ground that fair and proper

opportunity was not afforded to the petitioner during the enquiry

proceedings and therefore directions were given for the

reinstatement of the petitioner with continuity of service. It is a

trite law that grant of full back wages is not automatic or a cast

iron rule wherever the termination is held as illegal. It would

depend upon the facts of each case to decide the payment of

back wages and the ratio in which it should be allowed. The

Labour Court granted 25% of the back wages influenced by the

fact that the petitioner failed to disclose his income earned by

him by selling vegetables. The Labour Court also found fault

with the petitioner as he failed to explain the source of his

sustenance and his family in the absence of any employment.

There cannot be any doubt that once thrown out of employment

the petitioner still has to sustain himself and his family members

and for which one would undertake petty jobs not even befitting

his status so that he and his family do not starve or lead the life

of destitutes. The earning through such a source once being

out of employment cannot be considered as a gainful

employment to be equated with the employment from where he

was illegally terminated. Nevertheless, it is expected of such a

petitioner to at least truthfully state in his statement of claim

and also in his evidence the exact source of his income during

the course of his unemployment so as to enable the court to

grant appropriate relief. Non-disclosure of such facts or

suppression of such facts will certainly influence the tribunals

and courts exercising discretionary jurisdiction and can be

viewed seriously. However, considering the facts of the instant

case that the petitioner served respondent DTC for 8 years and

his services were wrongfully terminated and the industrial

dispute was answered in his favour after a long gap of 14 years

and also considering the fact that at the time of reinstatement,

the petitioner was of about 47 years of age, I feel that the

interest of justice would be best served if 50% backwages are

awarded to the petitioner.

11. In view of the above discussions, the respondent is

directed to pay 50% back wages to the petitioner from

16.12.1987 till 19.12.2002 subject to adjustment of 25% back

wages already paid to the petitioner.

12. With these directions, the petition is disposed of.

May 19, 2009                             KAILASH GAMBHIR, J.