Shri Ram Kanwar vs Delhi Transport Corporation
2010 Latest Caselaw 1967 Del

                  *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                         WP(C) No.6078/2003

%                                                           Date of decision:16th April, 2010

DELHI TRANSPORT CORPORATION                             ..... Petitioner
                  Through: Mrs. Saroj Bidawat, Advocate.

                                                   Versus

SHRI RAM KANWAR & ORS.                            ..... Respondents
                 Through: Mr. K.K. Tyagi with Mr. Iftekhar Ahmad,
                          Advocate.

                                                 AND

                                          WP(C) No.9368/2004

SHRI RAM KANWAR                                                             ...... Petitioner
                                          Through: Mr. K.K. Tyagi with Mr. Iftekhar Ahmad,
                                                   Advocate.

                                                 Versus

DELHI TRANSPORT CORPORATION                           ..... Respondent
                  Through: Mrs. Saroj Bidawat, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers 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                        NO
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. Shri Ram Kanwar (hereinafter referred to as the workman) was employed

with the employer DTC as a Driver since 25th July, 1981. On 16th November, 1983

he met with an accident while performing his duties. However, he continued to

work for the employer DTC till 16th January, 1992 when he was retired

prematurely by the employer DTC in exercise of the powers under Clause10 of

DRTA (Condition of Appointment & Service) Regulations, 1952 i.e. on the

ground of his medical unfitness to perform the duties of a Driver. An industrial

dispute was raised by the workman and the following reference was made to the

Labour Court:-

"Whether the termination of Shri Ram Kanwar by way of premature retirement is illegal and/or unjustified and if, so to what relief is he entitled and what directions are necessary in this respect?"

2. The Labour Court has in the award dated 1st October, 2002 held that it

stood proved on record that the workman was declared medically unfit for the post

of Driver. It was further held that though under Clause 10 of the Regulations

(supra), the employer DTC had power to give premature retirement to the

workman if declared medically unfit for performing his duties due to some

physical infirmity/disability but The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995 had already

come into force. It was held that though the said Act was not in existence on 16th

January, 1992 when the services of the workman were prematurely terminated but

keeping in view the object and purpose of the Act and it being a social legislation

for the welfare of employees who acquire disability during service, the Labour

Court held that the benefit of Section 47 of the said Act could be extended to the

pending cases in which the services of employees were terminated by way of

premature retirement on the basis of disability acquired during the period of

service. The Labour court thus held the order of premature retirement of the

workman to be illegal and unjustified and violative of Section 47 of the

Disabilities Act. It was also held that no notice or notice pay or any compensation

had been given to the workman at the time of termination of his services by way of

premature retirement and on this account also the termination was held to be

illegal. The Labour Court granted the relief of reinstatement in service along with

50% back wages to the workman. It was however observed that the employer DTC

was free to accommodate the workman to any suitable job in view of Section 47

(supra).

3. Aggrieved from the aforesaid award, employer DTC preferred W.P.(C)

6078/2003 on two grounds only. Firstly, it is contended that the Disabilities Act

has prospective effect only and the Labour Court erred in giving retrospective

effect thereto. Secondly, it is contended that the workman had applied for being

re-designated as a Peon on medical grounds; however as per the service rules, the

Peon was required to be 8th class pass while the workman was only 4th class pass

and thus did not have qualification for the post of Peon. It is pleaded that the

workman was however given an opportunity for the post of Store Attendant and

which he did not avail.

4. W.P.(C) 6078/2003 preferred by the employer DTC came up before this

Court first on 22nd September, 2003 when this Court held that the award warranted

no inference in so far as it granted the relief of reinstatement to the workman.

However on the plea of the counsel for the employer DTC that the workman by

not accepting the lower post of Store Attendant had disentitled himself from

claiming back wages, notice of the writ petition confined to the said aspect only

was issued and the operation of the award in respect of 50% back wages was

stayed. The said order continues to be in force.

5. The workman also thereafter preferred W.P.(C) 9368/2004 seeking

modification of the award; it is the case of the workman that the Labour Court

ought to have granted the relief of reinstatement with full back wages and all

benefits instead of 50% back wages only. Notice of the said writ petition was also

issued and the same is being taken up with W.P.(C)6078/2003.

6. The employer DTC has in affidavit dated 19th October, 2005 filed in

W.P.(C)6078/2003 stated that upon this Court not entertaining the writ petition

qua the relief of reinstatement, the workman was reinstated to the post of Store

Attendant. It is also disclosed in the said affidavit that the workman had in

execution of the award aforesaid received back wages through attachment of the

bank account of employer DTC in the sum of Rs.1,37,259/-.

7. The counsel for the employer DTC has also urged only two submissions

before this Court. Firstly, that the Disabilities Act has only a prospective operation

and is not applicable to the workman who was prematurely retired on medical

grounds before coming into force of the said Act. It is contended that the award of

50% of the back wages on the basis of the Disabilities Act is not justified.

Secondly, it is contended that since the employer DTC had offered the post of

Store Attendant to the workman and which he had not availed of, the award for

50% of the back wages is bad for this reason also. It is also urged that even

otherwise, the workman having not worked for the employer DTC ought not to be

granted any wages for the said period and in any case is not entitled to full back

wages as claimed. The principle of "no work no pay" is sought to be invoked.

8. Per contra, the counsel for the workman has contended that the plea that the

workman was offered the post of Store Attendant is an afterthought and has been

taken for the first time before this Court and the same is not permissible. It is

further contended that no document in this regard also has been placed before this

Court. It is also urged that the award also gives a reason of non compliance with

Section 25F of the ID Act by the employer DTC and in which respect no

averment/argument has been made by the employer DTC. It is urged that the

award is entitled to be upheld on this ground alone. It is also contended that the

award does not give any reason for giving only 50% of the back wages to the

workman. Reliance is placed on M/s. Hindustan Tin Works Pvt. Ltd. Vs. The

Employees of M/s. Hindustan Tin Works Pvt. Ltd. AIR 1979 SC 75 laying down

that where the termination of service is found to be illegal, the workman is entitled

to full back wages. The counsel for the employer DTC in rejoinder sought

opportunity to file documents to show that the workman had been given an option

to join as a Store Attendant and which he did not avail of. However the said

opportunity was declined.

9. As far as the first argument of the employer DTC of the Disabilities Act

being not applicable to the facts of the present case is concerned, I find that the

hearing in these petitions on 22nd July, 2008 was adjourned awaiting the decision

of the Division Bench of this Court qua the retrospective operation or applicability

otherwise of the provisions of Disabilities Act. The matter is now no longer res

integra. The Division Bench of this Court in DTC Vs. Harpal Singh (156) 2009

DLT 481 has, after consideration of the entire gamut of case law, while holding

that the provisions of Section 47 of the Disabilities Act cannot be given

retrospective operation, held that the benefit thereof can certainly be extended to

any pending proceedings. This has been held to be the mandate of Article 41 of the

Constitution of India. The reference of the industrial dispute in the present case

was made on 11th November, 1992 i.e. prior to coming into force of the

Disabilities Act and the proceedings before the Labour Court in the present case

were pending when the said Act came into force and in the circumstances no error

can be found with the award giving the benefit of Section 47 of the said Act to the

workman.

10. That brings me to the question whether the award calls for any interference

in so far as restricting the award of back wages to the workman to 50% only. The

employer DTC has opposed the same on the ground that the workman had been

offered the alternate job of Store Attendant and had failed to avail of the same and

thus is not entitled to even 50% of back wages. I enquired whether such plea was

taken by the DTC before the Labour Court. While the counsel for the DTC has

expressed inability to reply, the counsel for the workman has handed over in the

court a copy of the written statement dated 26th February, 1993 filed by the DTC

to the claim of the workman before the Labour Court. No such plea is found to be

contained therein. On the contrary, it is the plea of DTC in the said written

statement that though the workman had sought alternative employment but DTC

no other alternative assignment to offer to the workman. However I find that the

workman has in his counter affidavit in W.P.(C)6078/2003 dealt in detail with the

said aspect. It is pleaded therein that on request of the workman for alternative job,

DTC had directed him to report for medical checkup for the post of Store

Attendant or Peon; that the workman appeared before the Medical Board but was

told to get specific certificate as to whether the medical examination was to be for

the post of Peon or for the post of Store Attendant; that DTC thereafter instructed

him to go for medical examination for the post of Store Attendant but the medical

examination was not conducted and on the contrary he was directed to undergo a

medical examination for the post of Driver. It is his categorical assertion that no

job of Store Attendant or any other alternative post was offered to him. DTC in its

rejoinder affidavit has not controverted the said pleas. In the circumstances, the

plea of the employer DTC taken before this Court for the first time that the

workman was offered the job of Store Attendant and failed to avail of the same is

not believable and cannot come in the way of the claim of the workman for back

wages.

11. It is not as if the workman was working/employed elsewhere. The workman

has been persisting with the claim against DTC and has also rejoined employment

with DTC. If he had any better opportunity in the interregnum he would not have

rejoined the employment with DTC as a Store Attendant. I also find that the

employer DTC, in relation to its workmen suffering disability, has been not only

violating the orders of the courts but also not been abiding by its own policy. The

Supreme Court in Anand Bihari Vs. Rajasthan State Road Transport

Corporation (1991) 1 SCC 731, even before coming into force of the Disabilities

Act, had held in relation to Drivers of Road Transport Corporation that workmen

suffering disability owing to occupational hazards are entitled to be absorbed in

other posts. In Special Leave Petition (C) No.1575/1991 titled Shri Vedi Prakash

Singh, Conductor vs. DTC, the Supreme Court vide order dated 5th August, 1991

(as reported in DTC Vs. P.O., Labour Court IV 105 (2003) DLT 208) had also

deprecated the refusal of DTC to accommodate its employees suffering from

disability in other or equivalent posts and issued directions in this regard. In

Baljeet Singh Vs. DTC 83 (2000) DLT 286 it is noted that DTC vide its office

order dated 13th November, 1995 provided a scheme for payment of compensation

to those employees who were rendered medically unfit in the posts to which they

were appointed. Similarly in Shri Sunil Kumar Vs. DTC 120 (2005) DLT 499 this

court held that DTC ought to have endeavoured to find a position for the workman

which would permit him to continue in service even if his injury has disabled him

to discharge the functions of his post and that it is not open to the DTC to claim

that termination of services on the grounds of medical disability was valid.

Similarly in Dilbagh Singh Vs. DTC 123 (2005) DLT 318 also, DTC was directed

to reinstate the driver with back wages.

12. It would thus be seen that notwithstanding the orders in cases involving

DTC itself, DTC not only failed to follow the same or its own policy but has

vexatiously contested the present petition. If DTC had followed the said orders, it

could have availed work from the workman in lieu of wages. The situation today,

being of own creation of DTC, it cannot be permitted to urge that it ought not to be

made to pay wages for the period for which the workman has not worked.

13. Even otherwise, once it is found that the action of the employer is illegal

and in defiance of several similar orders of the courts and also of the own policy of

the employer and further when the workman had no opportunity to benefit from

the employer not giving work to him, I do not see any reason for not awarding full

back wages to the workman. The workman has after all been without his wages for

that time. DTC has not been able to establish that the workman was given

opportunity to work and which was refused by the workman. The only deduction

which can be made from the wages is the amount which would have been

expended / spent by the workman if made to work, in stepping out of the house.

However, since in the present case considerable time has elapsed and no interest is

being granted to the workman on the arrears of back wages, payment whereof

remains stayed under orders of this Court for the last nearly seven years, I do not

deem it appropriate to make deduction on the said account also from the back

wages.

14. W.P.(C) 6078/2003 preferred by the employer DTC is accordingly

dismissed and W.P.(C)9368/2004 preferred by the workman is allowed by

modifying the award dated 1st October, 2002. It is held and directed that the

workman shall be entitled to full instead of only 50% of the back wages. The

workman has also claimed the relief of continuity in service and other benefits.

However neither any arguments have been addressed in that respect nor do I find

any reason to grant any such relief to the workman. The workman having himself

applied for being absorbed in the post of a Store Attendant and having been so

absorbed is not entitled to any such relief. DTC is directed to pay the balance

arrears of back wages to the workman within six weeks hereof failing which it

shall incur simple interest at 7% per annum. The parties are left to bear their own

costs.

RAJIV SAHAI ENDLAW (JUDGE) 16th April, 2010 pp