Delhi Transport Corporation vs Om Parkash
2010 Latest Caselaw 1455 Del

                       *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                WP (C) NO.23602/2005

%                                                  Date of decision: 16th March, 2010

          DELHI TRANSPORT CORPORATION                                 ....Petitioner

                                Through: Mr. J.S. Bhasin and Ms. Rashmi Priya,
                                         Advocates

                                           Versus
          OM PARKASH                                                    ..... Respondent
                                Through: Mr. Anil Mittal, Advocate

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.        Whether reporters of Local papers may
          be allowed to see the judgment?                   YES

2.        To be referred to the reporter or not?                  YES

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

RAJIV SAHAI ENDLAW, J.

1. The petitioner DTC seeks quashing / setting aside of the award dated 23rd

March, 2005 of Industrial Tribunal on the following reference:-

"Whether Sh. Om Parkash S/o Sh. Mangal Ram is entitled to the arrears in the pay scale of driver, if so what directions are necessary in this respect?"

in favour of the respondent and against the petitioner DTC. The award

directs the petitioner DTC to pay to the respondent the pay scale of a driver w.e.f. 1 st

February, 1996 and out of which amount 50% has been directed to be paid to the

respondent and the balance 50% directed to be deposited in his provident fund

account. This Court vide ex parte order dated 16th December, 2005 while issuing

the notice of the writ petition stayed the operation of the award. The said order, vide

order dated 8th August, 2007, was confirmed till the disposal of this petition.

2. The respondent, on 23rd May, 1977 was appointed as and started working as a

driver with the petitioner DTC. During the course of his employment, he was sent

for medical examination by the petitioner DTC; the medical board declared the

respondent unfit for the post of driver. The petitioner DTC thereafter vide order

dated 31st March, 1980 prematurely retired the respondent from service of the

petitioner DTC with immediate effect. The respondent on 9th April, 1980 applied to

the petitioner DTC for absorbing him in the cadre of store attendant on

compassionate grounds. The respondent was vide letter dated 21st July, 1980 of the

petitioner DTC informed that his request had been acceded to and offered the job of

a store attendance on the terms and conditions contained therein. The said terms

inter alia were that the respondent would be re-designated to the post of store

attendant and his pay would be fixed at Rs.206/- in the pay scale of 200-03-212-04-

232 EB-240. The respondent communicated his consent to the aforesaid offer of the

petitioner DTC and the petitioner DTC vide order dated 1st August, 1980 re-

designated the respondent as store attendant w.e.f. 2nd August, 1980 and on other

terms and conditions including as to pay scale of a store attendant contained therein.

3. It is the case of the respondent workman that he had accepted the pay scale of

a store attendant under protest and had demanded the pay scale of a driver which he

was getting at the time of his premature retirement. It is further his case that the

management of the petitioner DTC had assured him that since a number of

employees had already filed writ petitions before this Court on similar facts and for

protection of their pay scale, in the event of the said writ petitioners succeeding, the

respondent would also be entitled to the pay scale of a driver and the additional

amounts would be reimbursed to him. I may however notice that there is no

document to the said effect. It is further the case of the respondent that this Court

while deciding the various writ petitions similar to the case of the respondent,

directed the petitioner DTC to protect the pay scale of employees whose ranks were

reduced due to disability during the course of employment; however, contrary to the

assurances meted out to him, he was not given the pay scale of a driver. The

petitioner thereafter raised a dispute on which the reference aforesaid was made on

26th March, 2004. The petitioner DTC resisted the claim of the respondent on the

ground of:-

          (i)          Delay.


          (ii)         Denying that the respondent had protested against the scale of store

attendant or had demanded the scale of a driver or was assured the said scale in the event of petitions filed by others similarly situated as the respondent succeeding.

4. The Labour Court held, on the basis of several judgments of this Court in

which the last drawn salary of a person under disability had been protected, that the

respondent was entitled to the relief claimed. However owing to the respondent

DTC having raised the dispute after 23 years of joining as a store attendant, the

respondent was held not entitled to the salary as a driver w.e.f. 2nd August, 1980 but

only w.e.f. 1st February, 1996 being the date of coming in force of the Persons with

Disability (Equal Opportunities, Protection of Rights & Full Participation) Act,

1995.

5. The counsel for the petitioner DTC has contended:

(i) That the reference should have been answered against the respondent on the mere ground of delay of 23 years in raising the dispute. Reliance is placed on Assistant Engineer, CAD, Kota Vs. Dhan Kunwar 2006 SCC (L&S) 1142 where an unjustifiable delay of 8 years in raising the dispute was held to have disentitled the workman from relief and U.P. State Road Transport Corporation Vs. Babu Ram (2006) 5 SCC 433 holding that it is for the workman to place material to show that a dispute is raised within a reasonable time and/ or that the workman is not responsible for the delay.

(ii) Respondent as a driver would have retired at the age of 55 years if found medically unfit; the retirement age of the petitioner as a driver because of disability would have been 55 years; that the respondent because of occupying the post of a store attendant continued in the employment of the petitioner DTC till the age of 60 years being the age of superannuation of a store attendant. It is also informed that the respondent in fact attained the age of 55 years in the year 2003 itself and raised the dispute only thereafter. It is thus contended that the respondent cannot avail double benefit i.e. of drawing the scale of a driver while retiring at the age of 60 years inspite of being medically unfit as a driver.

(iii) That prior to coming into force the Disability Act, the respondent had no right of protection of his last drawn salary as a driver. An additional affidavit has been filed in this regard to contend that at the contemporaneous time, the respondent workman was only entitled to be absorbed in an equivalent or lower post at the salary of the post where so absorbed.

6. Per contra, the counsel for the respondent has contended that the Disability

Act is a beneficial provision and is to be interpreted liberally. He contends that

delay in raising a dispute is not always fatal. Reliance in this regard is placed on

Chief Medical Officer,Mandsaur vs. Narendra Singh (2005) 12 SCC 403

GM, Haryana Roadways Vs. Pawan Kumar, (2005) 12 SCC 459 and Shri Dilbagh

Singh v. Delhi Transport Corporation 2005 84 DRJ 208. He also contends that

even prior to coming into force of the Disability Act, the Supreme Court in

Narendra Kumar Chandla Vs. State of Haryana (1994) 4 SCC 460 had directed

for protection of the last drawn salary.

7. In the opinion of this court, the respondent, in any case not be entitled to the

emoluments as a driver after attaining the age of superannuation as a driver. The

continuance by the respondent in the employment of the petitioner DTC after

attaining the age of superannuation as a driver could only be as a store attendant.

The Division Bench of this Court recently in Delhi Transport Corporation Vs. Shri

Dharam Pal 160 (2009) DLT 555 has unequivocally held that a driver suffering

disability and availing of the provisions of the Disability Act cannot seek to

continue in employment beyond the age of superannuation as a driver. It was held

that absorption of such drivers under disability in another post being by way of

benefit extended to them does not ipso facto increase the age of their superannuation

of 55 years as a driver. Thus the award in so far as holding the respondent entitled to

the emoluments as a driver, with effect from the date of his superannuation as a

driver till the date of retirement as a store attendant cannot thus be sustained and the

award to that extent is set aside.

8. The question which falls for consideration is as to whether the respondent is

entitled to the benefits / emoluments as a driver from 1st February, 1996 till attaining

the age of 55 years of superannuation as a driver.

9. I will first examine the matter under the Disability Act. Another Division

Bench of this Court recently in Delhi Transport Corporation Vs. Sh. Harpal

Singh 156 (2009) DLT 481 after consideration of the entire gamut of case law,

while holding that the provisions of Section 47 of the Disability Act cannot be given

retrospective operation has held that in pending proceedings the benefit thereof can

certainly been extended. This has been held to be the mandate of Article 41 of the

Constitution of India. In the present case, no proceedings were pending on the date

of coming into force of the Disability Act and thus the benefit of the Act cannot be

extended to the respondent. It thus remains to be seen whether the respondent is

entitled to the emoluments as a driver under the general law which was prevailing

then.

10. The petitioner DTC has in the additional affidavit also stated that a scheme in

this regard was formed by the Supreme Court in Anand Bihari Vs. Rajasthan State

Road Transport Corporation AIR 1991 SC 1003. Under the said scheme also I do

not find any provision for protection of the last drawn salary of the workman. The

said scheme provided for payment of compensation and in the event of vacancy in

alternative job absorption in the same. The said additional affidavit mentions

several other orders/judgments of this court, some also upheld by the Supreme

Court, of the time prior to the coming into force of the Disability Act and in which,

in relation to such disabled employees, only provision for compensation or

absorption in equivalent or lower post was made, without preserving the pay scale.

It is the contention of the petitioner that old settled cases as in the present case,

should not be permitted to be reopened, as done in the impugned award; else all

employees who were absorbed in lower posts at scales applicable to such posts will

start making claims.

11. However, my research shows that 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 Delhi Transport

Corporation v. Presiding Officer, Labour Court IV 105 (2003) DLT 208) held:

"Assuming that the Corporation is right that the appellant is now not fit to be a Conductor, there is another aspect which the authorities have failed to take into account. From annexure 'A' to the rejoinder affidavit, it appears that several posts are being treated equivalent to that of a Conductor, and having regard to the medical report, it cannot be suggested that the appellant is unfit for being entrusted with the duties of any of these posts. On the last date when the matter was heard in part, we had drawn the attention of the counsel for the respondents to this aspect and the case was adjourned for the respondents to consider the feasibility of appointing the appellant as a Junior Telephone Operation, Confidential Clerk, Counter or in any other equivalent post. The learned counsel for the appellant states today that the Corporation is not prepared to offer the appellant a post in Class III. The learned counsel however has not been able to suggest any acceptable reason in support of the stand of the respondents. While we find a policy being adopted in this country of taking measures to rehabilitate handicapped persons, the respondents are referring (sic; refusing) to accommodate the appellant in an equivalent post without any valid ground. Having considered all the relevant circumstances we therefore direct that appropriate orders shall be passed by the respondents within a period of three weeks from today offering a post, equivalent to the post of Conductor, to the appellant. His continuity of the service shall also be maintained. So far the back wages are concerned, the respondent shall allow the same for the intervening period at the rate payable for a Class IV job."

12. To the same effect is the judgment relied on in the award in Narendra

Kumar Chandla (supra). Thus it appears that on case to case basis, the courts

before the coming into force of the Disability Act were giving the benefit of

protection of last drawn salary to the disabled workers and who had pressed their

claims for the same, without however making it a general rule. The respondent

herein did not press his claim even if any for protection of his last drawn pay scale.

Rather the respondent accepted the order of his premature retirement owing to

disability and applied for appointment to some other post on compassionate ground.

The respondent unequivocally accepted the offer made by the petitioner DTC for

employment as store attendant on the scale of store attendant. If the respondent had

then not accepted the post as a store attendant and/or not given the acceptance to the

offer made to him, the petitioner DTC would not have so engaged him. The

respondent is now estopped from contending otherwise.

13. The counsel for the respondent has relied on Tarlochan Singh Aujila Vs.

DTC (2005) V A.D. (Delhi) 607. However, in this case the driver was prematurely

retired in December 1995 for the reason of disability and absorbed in a lower post.

Upon dispute being raised by him, though a Single Judge of this court negated the

plea of him being not entitled to protection of last drawn pay scale for the reason of

retrospectivity, nevertheless gave option to either accept the scale of lower post and

retire at the age of 60 years or protect last drawn pay scale and retire at the age of 55

years. The driver was not held entitled to both.

14. The respondent in the present case, though seeking benefits as of a driver and

thus liable to retire at the age of 55 years, however continued in the employment of

the petitioner DTC till the age of 60 years. In fact the counsel for the petitioner

sought to suggest that even if the respondent is found entitled by this Court to the

awarded amount from 1st February, 1996 till the date of attaining age of 55 years,

out of the said amount the emoluments received by the respondent for the next five

years should be deducted. However, that would not be appropriate. The respondent

has continued to work and the petitioner DTC has continued to avail the benefit of

the services of the respondent for the said five years and thus the petitioner DTC

cannot deduct the said amount inasmuch as it would tantamount to the petitioner

DTC having availed the services of the respondent for free. The only impact of the

respondent having continued to work for additional five years and having drawn

wages therefor is to hold the respondent having disentitled himself from claiming

protection of last pay scale and in which case he would have retired at age of 55

years. The respondent is informed to have attained the age of superannuation as a

store attendant on attaining age of 60 years in or about the year 2007. It is found

that the respondent raised the dispute after crossing the age of 55 years and while

continuing in employment as a store attendant for another five years. Had the

respondent raised the dispute earlier, the petitioner DTC would have retired him at

the age of 55 years. The respondent is held not entitled to relief on this ground

alone.

15. Though the counsel for the respondent has contended that the relief from 1st

February, 1996 till attaining the age of superannuation i.e. for about six years only

ought not to be denied to the respondent but I have been unable to find any basis on

which the said relief can be granted to the respondent.

16. The writ petition therefore succeeds. The award dated 23rd March, 2005 of

the Labour Court is quashed / set aside.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) March 16th, 2010 gsr