Delhi High Court
Dtc vs Bishan Singh, Cond. on 24 November, 2009
Author: Ajit Prakash Shah
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 393/2009
DTC ..... Appellant
Through: Ms. Avnish Ahlawat, Adv.
versus
BISHAN SINGH, COND. ..... Respondent
Through: Mr. Krishan Paul, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR
ORDER
% 24.11.2009
CM 11279/2009 (Delay)
For the reasons stated in the application, delay in filing the
appeal is condoned and the application is allowed and disposed
of.
LPA 393/2009
This appeal is directed against the impugned order dated
27th March, 2009 passed by the learned single Judge dismissing
the appellant's WP(C) No.6821/2004.
2. The Respondent was employed as a Conductor with the
Appellant Delhi Transport Corporation (DTC) and was posted at
Seema Puri Depot. It is the case of the DTC that while on duty on
20th March, 1991, at about 3:15 p.m., the respondent along with
Shri Om Prakash, Driver, Shri Mahesh Chand, Driver, Shri Ram
Gopal, Driver and Shri Mohd. Shahid, Conductor manhandled one
Shri Harish Gupta, Depot Manager of the Nand Nagri Depot as
well as one Shri P.K. Rai of the same depot. A charge sheet was
issued to the respondent in regard to this incident. The Inquiry
Officer held the charges to be proved. The report of the Inquiry
Officer was accepted by the disciplinary authority. It is stated
that the show cause notice dated 4.12.1991 issued by the
disciplinary authority to the respondent on the question of
penalty was not replied to. By a letter dated 15.1.19992, the
respondent was removed from service.
3. The case of the appellant DTC is that one month's wages
was remitted to the respondent through money order and
simultaneously an application was filed before the Industrial
Tribunal under Section 33(2)(b) of the Industrial Disputes Act,
1947 (ID Act). The said application was registered as O.P. No.
14/1992.
4. By an order dated 22.7.2002, the Tribunal held that there
was no defect in the enquiry proceedings held by the DTC.
Thereafter, the Tribunal took up the issue whether full one
month's wages had been remitted to the respondent at the time
of his removal. On behalf of the DTC, Sh. Jai Veer Singh filed his
affidavit dated 10.9.2002 and was examined as AW-1. He
deposed that the Management had issued a notice salary bill of
Rs.2150/- to the respondent by post on 2.11.1992. During cross-
examination, he stated that he did not know the correct address
of the respondent. As per the document Ex.AW1/R1, address of
the respondent was shown as House No. D910/1, Ashok Nagar,
Delhi - 93. Ex.AW1/R2 showed the permanent address of the
respondent as Village and P.O. Khanpur, District Bulandshahar,
UP. The respondent was also examined as RW-1. He denied
having given his address in the Department as House No. J-315,
Kartar Nagar, New Usman Pur, Shahdara, Delhi - 32.
5. The Tribunal held that the DTC had failed to establish that
the money order was sent to the address of the respondent at
House No. D910/1, Ashok Nagar, Delhi - 93 or Village and P.O.
Khanpur, District Bulandshahar, UP. Consequently, it was held
that the appellant had not remitted the one month's wages to
the respondent's correct address. It was held that DTC had not
complied with the provisions of Section 33(2)(b) of the ID Act and
the approval for removal of the respondent was accordingly
rejected.
6. The learned single Judge noted in the impugned order that
the letter dated 7.12.1990 written by the DTC to the respondent
required him to report for duty and that letter showed his
address as D910/1, Ashok Nagar, Delhi - 93. Consequently, it
was held that the dispatch of the money order to some other
address could not be accepted as due compliance with the
requirement of Section 33(2)(b) of the ID Act. Consequently the
writ petition was dismissed.
7. It may be noted that as regards Shri Mahesh Chand who
was also charge sheeted along with the respondent for the same
incident, a similar order had been passed by the Tribunal on
23.12.2002. WP(C) 1043/2004 filed by the DTC against the said
order was allowed by the learned single Judge of this Court in
which it was observed that a hyper technical approach cannot be
adopted to defeat the very purpose of the law. As long as the
money order was sent at the address given in the service record,
it could not be held that there was non-compliance with the
requirements of Section 33(2)(b) of the ID Act. It was for the
employee to inform to management of the change of his
address.
8. Learned counsel for the parties have been heard and with
their consent, the appeal is taken up for final hearing.
9. Ms. Avnish Ahlawat, learned counsel appearing for the
appellant DTC submits that by a letter dated 13.2.1992
addressed to the DTC, the respondent himself acknowledged
that he had learnt that he had been removed from service. The
said letter reads as under:
"To,
The Depot Manager,
Shahdara Depot-II,
Delhi.
Sir,
It is submitted that today on 13.2.1992
when I came to my duty, I came to know that I
have been dismissed from service and also
came to know that the dismissal order and
Money Orders which the corporation gives,
were sent to me by post, which could not be
received by me and it has come back to the
Depot.
Therefore, you are requested to provide
me the letter of dismissal, Money Orders and a
Hindi version of the decision. I shall be highly
obliged and in future please address all
communications to me on the following
address:
Applicant
Conductor Bishan Singh
B.No. 12112 T. No.20897
Shahdara Depot -II
Dated 13.2.1992
Address D-910/1, Ashok Nagar, Delhi-93."
10. On this request, the following endorsement was made by
the Depot Manager of Shahdara-II:
"If agreed to he may be delivered the removal
memo to ex-employee against his proper
signatures which has been received back from
the postal authority on a/c of non available of
receiver. More over the postal authority may
also requested to intimate the where about of
money order amount. Submitted please."
11. It is plain from the above letter of the respondent that he
was aware of the order removing him from service. He did not in
the above letter state that the said removal order has been sent
to the wrong address. We have also been shown the service
book of the respondent. It does not contain the changed address
of D-910/1, Ashok Nagar, Delhi - 93. We also find from the record
of the Labour Court that the summons in the case was issued to
the respondent at the address J-315, Kartar Nagar and duly
received by him by signing on the reverse.
12. We are unable, therefore, to agree with the learned single
Judge that the money order in respect of the one month's salary
was not sent at the address available with the appellant as is
evident from the service record of the respondent. If indeed the
respondent was aware of the removal order, then it is futile for
the respondent to contend that the money order was sent to the
wrong address.
13. For the aforementioned reasons, we are not able to sustain
the order of the learned single Judge and the same is hereby set
aside. Consequently, the award dated 25.2.2003 passed by the
Tribunal is also set aside.
14. Learned counsel appearing for the appellant informs us
that pursuant to the impugned award of the Labour Court, the
respondent filed execution proceedings in which, pursuant to an
attachment order passed, a sum of nearly Rs.7 Lakhs has already
been released to the respondent. Considering the number of
years that have elapsed since the removal of the respondent
from service, we consider it appropriate to direct that the money
already released to the respondent shall not be recovered from
him.
15. With the above directions, the appeal is allowed. No order
as to costs.
CHIEF JUSTICE
S.MURALIDHAR, J
NOVEMBER 24, 2009
pk
