Delhi Transport Corporation vs Chetan Parkash
2010 Latest Caselaw 3688 Del

*            HIGH COURT OF DELHI : NEW DELHI


+                       WP (C) No.7183/2007


DELHI TRANSPORT CORPORATION                   ......Petitioner
               Through: Mr. J.S. Bhasin, Adv. with
                        Ms. Rashmi Priya, Adv.

                        Versus

CHETAN PARKASH                             .....Respondent
              Through: Mr. A.K. Bhattacharya, Adv. with
                       Mrs. S. Mukherjee, Adv.

Judgment pronounced on: 09.08.2010

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

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

MANMOHAN SINGH, J.

1. The present writ petition filed by the petitioner DTC is

directed against the order dated 4.4.2007 passed by the Presiding

Officer, Labour Court-19, Karkardooma Courts, Delhi.

2. The brief facts are that due to participation of the respondent

in a strike and inciting other workmen, he was removed from service of

the petitioner on 24.3.1988 invoking the provision of Section 4 of the

Essential Services Maintenance Act, 1981. The enquiry against the

respondent was disposed with in exercise of power conferred under

proviso (II) of Clause 15(2)(c) of Delhi Road Transport Authority

Regulations, 1952.

3. Thereafter, the respondent filed the complaint under Section

33-A of the Industrial Dispute Act, 1947 (hereinafter referred to as the

Act) before the Labour Court by raising the industrial dispute reference

regarding the implementation of 4th Pay Commission recommendation

to the employees of DTC. The said complaint was decided vide award

dated 3.10.2001 and the following directions were issued by the said

order:

"The above discussion shows that the services of the workman/complainant were terminated illegally and without any justification. The management has already taken various workmen whose services were terminated for taking part in illegal strike or instigation and inciting the other workers to strike work in March 1988. It is correct that the management put certain conditions for taking those workmen in its employment. However, those conditions cannot be made application in the present case because of specific finding that the workman did not commit misconduct as alleged against he consequently, the complaint Shri Chetan Parkash is entitled be reinstated in service with full back wages and continuity in service. He is entitled for full back wages from the date of his removal from service i.e. 24.3.1988."

4. The said order was challenged by the petitioner by filing writ

petition before this Court which was dismissed by order dated

31.8.2004. The respondent was later on reinstated into the services of

the petitioner along with back wages with effect from 16.2.2005. The

respondent subsequently filed an application under Section 33(C)(2) of

the Act for payment of arrears towards back wages and payment of

other benefits such as bonus, leave encashment, gazetted holiday cash

compensation, medical allowance, cost of items of liveries, washing

allowance and leave travel concession because he was not physically

present for work during the said period.

5. The evidence was recorded in the matter before the Trial

Court. In cross-examination, the respondent admitted that he had

received a sum of Rs.10,17,501/- towards dues from 24.3.1988 till

15.2.2005. In the evidence of Mr. G.K. Popli, Depot Manager

of the petitioner he admitted that the respondent was not in service with

effect from 24.3.1988 to 15.2.2005 hence, he was not paid complete

dues.

6. By impugned order dated 4.4.2007, the Tribunal held that in

view of the facts and circumstances of the case, the workman would be

entitled to receive Rs.100/- per month since April 1999 when the

medical allowance scheme was stated to have been implemented till he

was reinstated in service on 22.2.2005. The directions were issued by

the Tribunal to pay the said amount to the respondent towards medical

allowance @ Rs.100/- per month for the said period within three

months. The petitioner has challenged the said order in the present writ

petition.

7. The main contention of the petitioner is that in the earlier

award dated 3.10.2001 there was no direction for payment of any

consequential benefits to the respondent and as per the settled law until

and unless there is a specific direction by the Court for payment of

consequential benefits, there was no question of payment of any benefits

or medical allowance and other benefits to the workman. In support of

his submission, the petitioner has referred to the decision of State of

U.P. & Anr. Vs. Brij Pal Singh; (2005) 8 SCC 58 wherein in paras 10,

11, 12 and 13, the Supreme Court has held:

"that the workman can proceed under Section 33- C(2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. A proceedings under Section 33-C(2) is a proceeding in the nature of execution proceedings in which the Labour Court calculates the amount of money due to a workman from the employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. The right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman and his employer. It is not competent to the Labour Court exercising jurisdiction under Section 33-C(2) to arrogate to itself the functions of an Industrial Tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of I.D. Act."

8. The next submission of the petitioner is that the Labour

Court had no jurisdiction to first decide the workman's entitlement and

then proceed to compute the benefit on the basis of existence of power

under Section 33-C(2) of the Act.

9. He has referred to the decision of Municipal Corporation of

Delhi Vs. Ganesh Razak & Anr.; (1995) 1 SCC 235 wherein in para 12

it has been held:

"That where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or

recognition thereof by the employer, the dispute relating entitlement is not incidents to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court power to interpret the decree for the purpose of its execution."

10. In order dated 3.10.2001 passed by the Presiding Officer, it

was specifically mentioned that the petitioner was not able to lead

convincing evidence against the respondent that the respondent had

participated in the strike on 17.3.1988 or he had instigated or incited

other workers to strike work. It was also held in the said order that the

respondent did not commit any misconduct and therefore, services of the

respondent were illegally terminated.

11. Though the respondent was reinstated in the service with full

back wages and continuity of service, he was only provided back wages

without the medical allowance and other benefits.

12. A mere reading of Section 2(rr) of the Act makes it clear that

the medical allowance is a part of wages. It is not disputed by the

parties that the medical allowance was not granted to the respondent.

By order dated 4.4.2007, the said limited relief was granted by the

Labour Court which was not granted earlier by the award dated

3.10.2001. Under the provision of Section 33-C(2) of the Act, the

respondent was entitled for the payment of arrears. It appears that the

claim of the respondent is hence as per law.

13. As already mentioned that the medical allowance is a part of

the wages as per the Section 2(rr) of the Act and the same was allowed

even by the award dated 3.10.2001. Therefore, the application filed by

the respondent under Section 33-C(2) of the Act was maintainable

before the Trial Court who has rightly granted the relief of medical

allowance in favour of the respondent. Therefore, the contention of the

petitioner is without any substance. The decisions referred to by the

petitioner do not help the case of the petitioner, rather ratio of these

decisions go in favour of the respondent.

14. The petitioner has not challenged the award dated 3.10.2001.

Therefore, I am of the view that the benefit of medical allowance is

covered under the definition of Section 2(rr) of the Act and the

application filed by the respondent under Section 33-C(2) of the Act

was maintainable and the relief granted thereto by order dated 4th April,

2007 was justified.

15. Thus, no case is made out by the petitioner for interference in

the impugned order dated 4.4.2007. Therefore, the writ petition is

dismissed with no orders as to cost.

MANMOHAN SINGH, J.

August 09, 2010 jk