Delhi High Court
Shri Praveen Kumar vs Delhi Transport Corporation on 5 October, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 4742/2008
% Date of Decision: 05th October, 2009
# SHRI PRAVEEN KUMAR
..... PETITIONER
! Through: Ms. Neha Gupta, Advocate.
VERSUS
$ DELHI TRANSPORT CORPORATION
.....RESPONDENT
^ Through: Ms. Charul Sareen, Advocate.
CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL
1. Whether reporters of Local paper may be allowed to see
the judgment? NO
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in the
Digest? NO
S.N.AGGARWAL, J (ORAL)
The petitioner being the workman in this writ petition seeks to
challenge an order dated 16.04.2008 passed by the Labour Court
dismissing his application under Section 33-C(2).
2. Briefly stated the facts of the case relevant for the disposal of this
writ petition are that the petitioner was removed from the service of the
respondent (DTC) w.e.f. 28.10.1992. It is an admitted case of both the
parties that the respondent management was required to obtain approval
of the Labour Court for removal of the petitioner from its service under
Section 33(2)(b) because at the time of removal of the petitioner from
the service of the respondent, an earlier industrial dispute was pending
adjudication before the Labour Court. In fact, the respondent filed an
application under Section 33(2)(b) before the Labour Court for approval
of removal of the petitioner from its service. This application of the
respondent under Section 33(2(b) was dismissed for non-prosecution vide
order dated 16.12.1994. An application for restoration of the approval
application filed by the respondent was dismissed by the Labour Court
vide its order dated 27.03.1995. The necessary consequence of
dismissal of respondent's application under Section 33(2)(b) was that the
petitioner was deemed to have continued in the employment of the
respondent in view of the judgment of the Hon'ble Supreme Court in
Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma
and Others reported as (2002) 2 SSC 244.
3. Consequent thereto, the petitioner was reinstated in service of the
respondent w.e.f. 24.09.2003. In fact, the respondent vide its letter
Exhibit RW-1/1 also paid an amount of Rs. 5,61,087/- to the petitioner
vide cheque No. 765627 dated 15.02.2005 being the amount due to the
petitioner on account of salary between the date of his removal and the
date of his reinstatement.
4. Since according to the petitioner he was not paid all the benefits
consequent upon his reinstatement w.e.f. 24.09.2003, he filed an
application under Section 33(2)(c) which has been dismissed by the
Labour Court vide order impugned in the present writ petition.
5. Ms. Neha Gupta, learned counsel appearing on behalf of the
petitioner, has drawn attention of this Court to the evidence of the
management's witness at page 24 of the Paper Book to contend that the
petitioner was admittedly not paid salary for the period between the date
of his suspension on 24.03.1992 and the date of his removal on
27.10.1992 and that he has also not been paid salary for the period from
17.11.2002 to 20.10.2003. The learned counsel appearing on behalf of
the petitioner has also not been granted increments during the period
from 24.03.1992 to 01.01.1994.
6. Ms. Charul Sarin, learned counsel appearing on behalf of the
respondent, has contended that the petitioner is not entitled for salary for
the period between the date of his suspension and the date of his
removal and also for salary for the period from 17.10.2002 to 20.10.2003
because according to her, the petitioner himself had given up his right to
claim salary for the said period. I do not find any merit in this argument
advanced on behalf of the respondent. Since the petitioner is deemed to
have continued in the employment of the respondent for not obtaining
approval under Section 33(2)(b), the petitioner is entitled to all
consequential benefits from the date he was placed under suspension
w.e.f. 24.03.1992. The witness of the management (respondent herein)
has admitted in his cross-examination which is at page 24 of the paper
book that the petitioner has not been paid full salary for the period
between the date of his suspension and the date of his removal and also
that he has not been paid salary from 17.11.2002 to 20.10.2003. The
witness of the management has also admitted that the workman has not
been granted increments for the period from 24.03.1992 to to
01.01.1994. According to the witness of the management, the petitioner
was not granted increments for the period between 24.03.1992 to
01.01.1994 as the petitioner remained under suspension during the said
period.
7. The petitioner could not have remained under suspension beyond
the date of his removal. Even if it is assumed that the petitioner
remained under suspension for the aforesaid period, he was still entitled
to get full wages for the entire period from the date of his suspension till
the date he was reinstated because the order of his removal became
non-est for want of approval under Section 33(2)(b). Needless to say that
the petitioner is also entitled to get benefit of increments for the period
intervening the date of his suspension and the date of his reinstatement.
8. In view of what has been stated above, the impugned order of the
Labour court is hereby set aside. The petitioner is held entitled to all
consequential benefits including salary for the period mentioned
hereinabove besides other benefits for the period between the date of his
suspension and the date of his reinstatement. However, since the
petitioner has not actually worked during the aforesaid period, he will not
be entitled to bonus claimed by him. Save and except bonus, he will be
entitled to all other benefits. The respondent is directed to pay the
arrears to the petitioner within a period of eight weeks from today.
9 This writ petition is allowed in terms referred hereinabove.
OCTOBER 05, 2009 S.N.AGGARWAL, J
'BSR'
