Delhi High Court
Shri Trived Prakash vs Delhi Transport Corporation And ... on 13 October, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 6939/2001
% Date of Decision: 13th October, 2009
# SHRI TRIVED PRAKASH
..... PETITIONER
! Through: Mr. D.N. Vohra, Advocate.
VERSUS
$ DELHI TRANSPORT CORPORATION AND ANOTHER
....RESPONDENTS
^ Through: Mr. Hanu Bhaskar, 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)
C.M. No. 10743/2009 and W.P.(C.) No. 6939/2001
The management of DTC (respondent herein) filed a miscellaneous
application being C.M. No. 10743/2009 seeking dismissal of the present
writ petition directed against the impugned order under Section 33(2)(b)
granting approval to respondent No. 1 for removal of the petitioner from
its service w.e.f. 02.08.1994.
2. Mr. Hanu Bhaskar, learned counsel appearing on behalf of the
respondent No. 1 management, has contended that after approval under
Section 33(2)(b) for removal of the petitioner was granted by the
Tribunal, the petitioner had raised an industrial dispute under Section 10
of the the Industrial Disputes Act, 1947, with regard to his removal, which
was referred by the appropriate Government in the Government of NCT
of Delhi for adjudication to the Industrial Tribunal. The industrial dispute
raised by the petitioner with regard to his removal from the service of
respondent No. 1 was decided by the Tribunal against the petitioner vide
award dated 06.01.2007 in I.D. No. 79/2002. The petitioner aggrieved by
the said award of the Tribunal had filed a writ petition being W.P.(C.) No.
9140/2009 which was dismissed by this Court in limine vide order dated
03.07.2009.
3. Mr. Hanu Bhaskar, learned counsel appearing on behalf of the
respondent No. 1 management, contends that since the challenge to the
award in the main industrial dispute has been rejected by this Court, this
writ petition filed against the impugned order under Section 33(2)(b) is
also liable to be dismissed.
4. The dismissal of the writ petition prayed for by the respondent No.
1 management is opposed by Mr. D.N. Vohra, learned counsel appearing
on behalf of the petitioner. Mr. Vohra has contended that since one
month wages in terms of Section 2(rr) of the Industrial Disputes Act, 1947
was not paid by the respondent No. 1 management, the order granting
approval under Section 33(2)(b) is liable to be set aside by this Court in
the present writ petition. Mr. Vohra has drawn my attention to paragraph
23 of the impugned order (running page 33 of the Paper Book) which is
extracted below:
"The office order No. 22, the definition of wage as mentioned u/s
2(rr) and the FR-9 Ex. AW2/Z do not suggest that the special pay
given to an employee for promoting the small family norms is
part of pay even at the time of payment of notice pay as in the
present case. The office order speaks that the concession will
remain fixed during the entire service period. The respondent
was paid notice pay only after he was removed from service. It
was not denied to the respondent so long he was in the service
of the petitioner. The special pay for promoting small family
norms was not to be counted for retirement benefits if the
respondent would have retired from service on attaining the age
of superannuation. Consequently, such special pay cannot be
part of the notice pay of a workman, who is removed from
service. As per definition of wages under Section 2 (rr) of I.D.
Act 'wages means all remuneration payable to a workman in
respect of his employment or of work done in such employment.
The special pay/incentive for adopting small family norms was
not in respect to the employment of the respondent or the work
done in the employment of the petitioner. It was incentive for
adopting small family norms and the respondent was entitled for
such incentive so long he was in the service of the petitioner.
That benefit was not denied to him during his period of his
service with the petitioner. Consequently, the petitioner was not
entitled for Rs. 20/- as special pay/incentive for adopting small
family norms at the time of payment of one month's notice pay.
Hence, the petitioner remitted full amount of one month's wage
to the respondent i.e. Rs. 2909/- by way of money order on the
day of his removal from service. Issue is decided in favour of
the petitioner."
5. Relying on the above paragraph, Mr. Vohra contends that since the
petitioner was not paid the special allowance of Rs. 20/- for maintaining a
small family norms in terms of office order No. 22, the impugned order
under Section 33(2)(b) is bad and cannot be maintained.
6. I do not agree with this contention made on behalf of the petitioner.
The petitioner was paid notice pay at the time of his removal from
service. The special pay of Rs. 20/- for maintaining a small family norms,
in the opinion of this Court, is not a part of allowance or wages as
provided in Section 2(rr) of the the Industrial Disputes Act, 1947. Even
otherwise, this Court is of the view that the scope of inquiry under
Section 33(2)(b) is different from the scope of inquiry in a reference
under Section 10 of the Industrial Disputes Act, 1947. Under Section
33(2(b), the Court has only to make a strong prima-facie view at the time
of granting or rejecting approval whereas in reference under Section 10
of the Industrial Disputes Act, 1947, the Labour Court or the Tribunal is
under an obligation to examine all the contentions raised by both the
parties on the merits of the case in detail. The reference under Section
10 has been dismissed against the petitioner and the challenge to the
same has also been rejected by this Court in writ petition being W.P.(C.)
No. 9140/2009 vide order dated 03.07.2009.
7. In view of what has been stated above, the instant application filed
on behalf of the respondent No. 1 management is allowed and the writ
petition being W.P.(C.) No. 6939/2001 is also dismissed. The parties are
left to bear their own costs.
OCTOBER 13, 2009 S.N.AGGARWAL, J
'BSR'
