Om Pati vs Dtc
2010 Latest Caselaw 2138 Del

*              HIGH COURT OF DELHI : NEW DELHI

+                      WP (C) No. 8508/2008


OM PATI                                             .....Petitioner
                       Through: Ms. Rashmi B. Singh, Advocate

                       Versus

DTC                                                .....Respondent
                       Through: Ms. Avnish Ahlawat, Advocate


      Judgment pronounced on : 23rd April, 2010

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      No

2. To be referred to Reporter or not?                   Yes

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

MANMOHAN SINGH, J.

1. In the present petition under Article 226 of the Constitution

of India the petitioner has challenged the order of the Labour Court

dated 14.5.2004 and 7.11.2006 under Section 33C(2) of the Industrial

Disputes Act, 1947. In the impugned order, the Labour Court by an

order dated 14.5.2004 directed the respondent to make the payment of

the back wages due to the workman on the basis of last drawn salary

from the date of his termination till the date of superannuation of

15.4.1994.

2. As the workman Dharampal died subsequently on 24.1.2000,

the case was pursued by his wife Smt. Om Pati thus, as per order, the

respondent was directed to make the payment to Smt. Om Pati widow of

the deceased who has filed the present petition. The case of the

petitioner is that late Dharampal was an employee with the respondent

Delhi Transport Corporation from 1.10.1958. His services were

terminated on 4.10.1971.

3. The husband of the petitioner was chargesheeted and

pursuant to the charges, a domestic inquiry was conducted and the

Inquiry Officer had found the husband of the petitioner guilty of charges

levelled against him and therefore, he was removed from the service on

4.10.1971. The Industrial Dispute No.165/1968 was pending under

Section 33(2)(b) of the Industrial Disputes Act, 1947 wherein the

application was filed by the respondent on 4.10.1971 for seeking

approval of action of removing the workman from the services of the

respondent. On 6.4.1994 the approval application of the respondent was

dismissed on the ground that the respondent had failed to establish the

charges levelled against the workman.

4. The case of the petitioner is that by dismissal of the said

application and by refusal of approval of the action the husband of the

petitioner was deemed to be in service of the respondent and he was

entitled for reinstatement with full wages as well as other consequential

benefits. The workman moved the application on 15.7.1994 to join the

duty and also for payment of his legal dues as he was not allowed to join

the duty. Neither the respondent paid back wages nor the respondent

challenged the order dated 6.4.1994.

5. Later on in November 1994, the workman filed an

application under Section 33C(2) of the Industrial Disputes Act for

computation of his back wages and other benefits. The said application

was opposed by the respondent on the ground that the same was not

maintainable. The matter was delayed due to one reason or other and,

during this period workman expired on 24.1.2000. Sh. Brijesh Sethi,

Presiding Officer, Labour Court VII, Karkardooma Court, Delhi, by

order dated 20.5.2002 decided the issue of maintainability in favour of

workman. In the main petition on 11.09.2002 the following issue was

framed:

"(i) To what amount, if any, the workman is entitled."

6. The case was fixed up for the evidence of the petitioner. The

affidavit of the petitioner by way of evidence was field on 22.10.2003.

The respondent did not wish to cross-examine the petitioner and specific

order in this respect was passed. On 14.5.2004 the impugned order was

passed by Sh. C.K. Chaturvedi, Presiding Officer, Labour Court No.VII,

directing the respondent to make the payment of back wages due to the

workman on the basis of last drawn salary from the date of his

termination till the date of superannuation of 15.4.1994 to the wife of

the workman.

7. The petitioner, the petitioner demanded the amount from the

respondent by moving the application under Section 33C(1) of the

Industrial Disputes Act for recovery of amount of Rs.5,43,757/- as

claimed in the application under Section 33C(2) of the Industrial

Disputes Act, 1947, on the other hand, the respondent offered the

petitioner a sum of Rs.53,269/- as the back wages of the deceased

workman as per the calculation made on the basis of the last drawn

wages @Rs.274/- per month in view of impugned order of the Labour

Court.

8. The application was also made for modification of

typographical error in the order dated 14.5.2004. In the meanwhile, the

Presiding Officer had been transferred and another application was filed

by the petitioner being M No.1/2006. The same was disposed of by

making the correction in the spelling of name of the petitioner and rest

of the relief made in the application was declined.

9. The main contention of the respondent is that the respondent

had offered Rs.53,269/- to the petitioner as back wages of the deceased

workman which had been calculated by the respondent on the basis of

last drawn wages @Rs.274/- per month as per the order of the Labour

Court. On the other hand, the contention of the petitioner is that the

entitlement of the claimed amount in view of the application by the

husband of the petitioner had not been disputed by the respondent and

where the claim made by the workman is on the basis of his pre-existing

right, the quantum of claim could not be modified by the learned Labour

Court without any jurisdiction.

10. It is also argued by the learned counsel for the petitioner that

the petitioner's evidence by way of Smt. Ompati had gone unchallenged

as no cross-examination was done by the respondent and she attached

the calculation chart with the said affidavit amount to Rs.5,43,757/-

which was marked as Ex.AW1/3 and therefore, the Labour Court was

bound to grant the said amount demanded as per the chart.

11. The next contention of the petitioner is that once the

approval application of the respondent had been dismissed by the court

which attained finality, the husband of the petitioner was deemed to be

in services of the respondent, thus the order of dismissal becomes

ineffective from the date it was passed and thus he becomes entitled to

wages from the date of dismissal to the date of disapproval of the

application till the time the employee is reinstated in service. Therefore,

the back wages cannot be calculated for the entire period from date of

removal i.e. 4.10.1971 upto the date of superannuation dated 15.5.1994

as held by the Labour Court in the impugned order.

12. After hearing learned counsel for the parties I am agreeable

with the submission of the petitioner as the function of Labour Court

under Section 33C(2) is to calculate the amount due to the workman

from the date of his employment and the money value of his benefit due

to the workman when he was entitled to any benefit which is capable to

be computed in terms of money. It appears that the Labour Court has

merely computed the money equivalent to such benefit. Under Section

33C(2) the Court cannot entrench upon the adjudication functions and

embark upon the elaborate enquiry as to what should be the terms to

give benefit as has been done in the present case.

13. It is the admitted position that the approval application filed

by the respondent was dismissed in favour of the petitioner and

therefore, he became entitled to back wages from the date of removal till

the time he is reinstated in service. It is a matter of fact that he was not

allowed to join service of the respondent. It is also a matter of fact that

the order of dismissal of approval application had not been challenged

by the respondent.

14. Important aspect of the matter is also that the evidence

produced by the petitioner has gone unchallenged and along with the

said evidence, the calculation chart was produced by the petitioner.

15. In the present case, the benefits had accrued to the late

husband of the petitioner by virtue of dismissal of approval application

on 6.4.1994. Therefore, the learned Labour Court has erred in not

computing the exact amount and not modifying the same on the

application filed by the petitioner for modification.

16. In case of Bombay Gas Company Limited vs. Gopal

Bhiva, 1963-II, LLJ 608 SC while referring to the Central Bank Case,

the Supreme Court has stated that the proceedings contemplated by

Section 33C(2) of the Industrial Disputes Act, 1947 are analogous to

execution proceedings and the court, like the executing court in the

execution proceedings governed by the Code of Civil Procedure, would

be competent to interpret the award on which the claim is based. In

other words, the power of the executing court is only to implement the

adjudication already made by a decree and not to adjudicate a disputed

claim which requires adjudication for its enforcement in the form of

decree.

17. Considering the overall circumstances of the matter, this

court is of the considered view that the Labour Court has erred in not

computing the amount correctly and therefore, the present petition is

allowed. Both the orders dated 14.5.2004 and 7.11.2006 are

accordingly modified with the directions to the respondent to make the

payment as per the calculation chart filed by late husband of the

petitioner before the Labour Court. The respondent is directed to pay

the petitioner the back wages with effect from 1.10.1970 to 15.5.1994

with all consequential benefits.

18. The writ petition is accordingly disposed of. The petitioner

is also entitled for the cost of Rs.5000/- from the respondent.

MANMOHAN SINGH, J.

APRIL 23, 2010 Jk/dp