Delhi Transport Corporation vs Shri Shyam Sunder & Ors.
2010 Latest Caselaw 2173 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                    WP(C)1993/1992

%                                                 Date of decision:26th April, 2010

DELHI TRANSPORT CORPORATION                   ..... PETITIONER
                  Through: Mr. J.N. Aggarwal & Mr. Mayank Joshi,
                           Advocates
                                         Versus
SHRI SHYAM SUNDER & ORS.                    ..... RESPONDENTS
                  Through: Mr. H.K. Chaturvedi & Ms. Anjali
                           Chaturvedi, Advocates.

                                         AND

+                                    WP(C)6584/2003

SHRI SHYAM SUNDER                                             ..... PETITIONER
                                  Through: Mr. H.K. Chaturvedi & Ms. Anjali
                                           Chaturvedi, Advocates.
                                         Versus
DELHI TRANSPORT CORPORATION                 ..... RESPONDENT
                  Through: Mr. J.N. Aggarwal & Mr. Mayank Joshi,
                           Advocates.
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. WP(C) 1993/1992 has been preferred by DTC with respect to the award

dated 19th September, 1991 of the Labour Court holding the termination by the

DTC of the services of the respondent workman to be illegal and unjustified and

directing DTC to reinstate the workman with continuity of service and full back

wages.

2. The DTC appointed the respondent workman as a Retainer Crew

Conductor with effect from 15th March, 1984 and he was put on probation for

one year with effect from 15th September, 1984. It is the case of DTC that the

respondent workman was negligent in discharging his duties; that the bus on

which he was posted was involved in an accident at Shahdara Terminal and hit a

person who fell down and received fatal head injuries. DTC thus terminated the

services of the respondent workman on 21st March, 1985 under Regulation

9(a)(i) of DRTA (Conditions of Appointment & Service) Regulations, 1952 after

paying one month's notice pay including retrenchment compensation. The

respondent workman raised an industrial dispute which was referred to the

Labour Court. The Labour Court held that notwithstanding the fact that the

respondent workman was on probation, since the cessation of his probation or

termination of his services was for the reason of misconduct aforesaid, it was

stigmatic and enquiry having not been held, the termination was held to be bad.

3. The award aforesaid is dated 19th September, 1991. DTC instead of

challenging the said award, issued a letter dated 16th March, 1992 to the

respondent workman, reinstating the respondent workman in service with

immediate effect subject to the final decision of the High Court in the writ

petition "which was going to be filed by the Corporation against the award dated

19th September, 1991". It was also promised vide the said letter that the

respondent workman would be entitled to full back wages from the date he was

terminated from service till the date of his reinstatement with the benefit of

continuity of service. It is undisputed that in pursuance to the said letter the

respondent workman joined the services of the DTC and continues to be in the

service. The writ petition challenging the award was filed after more than two

months in or about May, 1992 and came up before this Court on 27th May, 1992

when Rule was issued. However, notwithstanding the aforesaid, the writ petition

was accompanied with an application for interim relief. Even though as per the

letter dated 16th March, 1992, the respondent workman was not only reinstated

but also held entitled to back wages but on 28th November, 1994, on the

statement of the counsel for the DTC that in pursuance to the award the

respondent workman had been reinstated in service, this Court stayed the

implementation of the award qua the payment of back wages.

4. WP(C) No.6584/2003 was filed by the respondent workman contending

that though in pursuance to the letter dated 16th March, 1992 he had joined duties

with DTC and has since then been working with DTC but without getting the

benefit of continuity of service. The respondent workman thus seeks the relief of

implementation of the letter dated 16th March, 1992 of the DTC in as much as

continuity of service is concerned. Notice of the said writ petition was also

issued and the same ordered to be heard along with WP(C) No.1993/1992.

5. The counsel for the DTC has contended that the award dated 19th

September, 1991 is contrary to the law as laid down in Municipal Committee,

Sirsa Vs. Munshi Ram JT 2005 (2) SC 117, Chaitanya Prakash Vs. H.

Omkarappa (2010) 2 SCC 623, Ram Narain Jha Vs. T.M. Apartments Pvt. Ltd.

2007 (99) DRJ 724 and the order dated 22nd September, 2004 in WP(C)

No.1061/1994 titled Delhi Transport Corporation Vs. Presiding Officer of

another Single Judge of this Court, all to the effect that during the probation

period the services of an employee can be terminated and merely because the

employer on appraisal of the performance of the employee finds the employee

not up to the mark, the order of termination of probation or cessation of

probation does not become stigmatic.

6. I have also recently in Duli Chand Vs. P.O., Labour Court-VIII

MANU/DE/0582/2010 held so. I find that the Division Bench of this Court in

Mahavir Singh Vs. D.T.C. 57 (1995) DLT 465 has also held that an order of

termination simplicitor of a probationer is not per se bad even when it is

preceded by a preliminary fact finding enquiry and it is only when a probationer

is dismissed from service without a proper enquiry that a stigma as a result of

some specific charge that the plea that the removal from service is by way of

punishment can be sustained.

7. In the present case, the order of termination of the respondent workman

does not cast any stigma on him. The order of the Labour Court is thus clearly

not in accordance with law.

8. However, the conduct of the DTC in reinstating the respondent workman

immediately after the award, though subject to the final decision in the writ

petition challenging the award, which had not even been filed at that time,

compels me to hold that this is not a fit case for exercise by this Court of the

discretionary jurisdiction under Article 226 of the Constitution of India. It has

been put to the counsel for the DTC as to why DTC in this case followed such

procedure. No answer is forthcoming. No reason for such conduct is set out in

the writ petition also. It was not as if DTC had sought interim stay of the award

and the same had been declined by this Court or there was any other compulsion

on DTC to reinstate the respondent workman. The proceedings since then have

remained pending for about 18 years. I have enquired from the counsel for DTC

as to whether DTC has in the last 18 years had any problem of

conduct/misconduct or otherwise with the respondent workman. The counsel for

DTC states that he has no instructions. The counsel for the respondent workman

on the other hand makes a categorical statement that for the last 18 years there

has been no case of misconduct against the respondent workman. The counsel

for the respondent workman infact invites attention to the certificate of

appreciation dated 6th September, 2004 issued by DTC to the respondent

workman, appreciating the exemplary honesty displayed by the respondent

workman and giving incentive of Rs.500/- to the respondent workman. The said

document has been on record for the last over five years and has not been

controverted by DTC.

9. This Court is of the opinion that DTC by its unilateral act of reinstating

the respondent workman has created a situation which does not now merit

interference by this Court in the award of the Labour Court even though found to

be contrary to law. The respondent workman at that time was at the threshold of

his career/ working life and could have got employment elsewhere. Today after

such a long lapse of time, the respondent workman would be incapable of finding

employment anywhere else and even otherwise family-wise would be at such a

stage where dismissal of the respondent workman from employment, which

would be the consequence of allowing the petition, would play havoc on the

respondent workman and his family members. DTC which has considerable

industrial / service litigation in this Court is deemed to be aware of the time for

which the writ petition would remain pending before this Court. DTC before

issuing the order of reinstatement dated 16th March, 1992 did not even take a

chance of seeking stay of operation of the award from this Court. It is generally

found that in a large number of awards against DTC stay of operation of the

award is granted. In such eventuality, the respondent workman in the meanwhile

would have arranged his affairs otherwise. However, DTC by making the

respondent workman work has now not left the respondent workman with any

other alternative avenue of employment.

10. WP(C) No.1993/1992 is thus dismissed. Consequently, WP(C)

No.6584/2003 is allowed. It is inexplicable as to why DTC has not fully

implemented its letter dated 16th March, 1992 by which it had made the

respondent workman accept the offer of reinstatement on the promise that he will

be paid full back wages and the benefit of continuity of service. The DTC is

directed to, within six weeks hereof, implement the letter dated 16th March, 1992

in entirety and to make payment to the respondent workman of salary giving

benefit of continuity of service as per the award. However, in the circumstances,

the parties are left to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) 26th April, 2010/gsr