Smt. Dhanpati & Ors vs Delhi Transport Corporation
2010 Latest Caselaw 2348 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) 1057/1996

%                                              Date of decision: 3rd May, 2010

SMT. DHANPATI & ORS                                             ..... Petitioners
                  Through:                 Mr. Akil Rataeeya, Advocate.


                             Versus

DELHI TRANSPORT CORPORATION                  ..... Respondent
                  Through: Mr. J.N. Aggarwal with 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
        in the Digest? No.

RAJIV SAHAI ENDLAW, J.

1. The predecessor of the petitioners was employed as a driver with the

respondent DTC. He was found to be suffering from colour blindness and thus

unable to function as a driver and thus was asked to give consent / willingness

for working on a class IV post; he however refused the said offer and demanded

to be given alternative job equivalent to that of a driver. The respondent DTC in

the circumstances prematurely retired the said workman in accordance with its

standing orders.

2. The workman filed WP(C)2531/1992 in this court impugning his

termination. The workman, in the writ petition challenged the decision of the

Medical Board of the respondent DTC disqualifying him as a driver. The said

writ petition was disposed of vide order dated 26th July, 1993. This court held

that the question of medical fitness of the workman could not be gone into in the

writ jurisdiction and the workman had alternative remedy for that. The writ

petition was disposed of with a direction to the DTC to absorb the workman in a

lower grade of peon in class IV. Liberty was granted to the workman to take

other appropriate legal proceedings available to him under the law. The DTC

was directed to pass appropriate orders absorbing the workman in the lower

grade. It was further provided that for the purpose of pension and retirement

benefits, the intervening period will not be treated as break in service, however

the workman would not be entitled to claim seniority in the new grade on that

basis. It was further held that the workman would be at liberty to raise question

regarding the wages for the intervening period before the Labour Court and

which will consider the same on merits without being influenced by the order in

the writ petition.

3. It appears that the respondent DTC asked the workman to resume duty

and join on 3rd January, 1994 subject to medical examination. The workman

contended that in view of the order dated 26th July, 1993 in the writ petition

(supra) DTC was not entitled to subject him to medical examination.

4. CCP 287/1993 came to be filed by the workman in this court. The same

was disposed of vide order dated 1st February, 1994. This court accepted the

statement of DTC that even for class IV employees there are different standards

depending upon the medical report and for this reason direction was given to the

workman to undergo medical examination. This court held that the direction

given to the workman for medical examination was not in violation of the order

dated 26th July, 1993 disposing of the writ petition as aforesaid. It was

accordingly directed that the workman will report for duty and appear for

medical examination on 2nd February, 1994. It was further ordered that in case

the workman failed to join duty or appear for medical examination, the DTC

would be at liberty to refuse him work.

5. Though the workman appeared for the medical examination but was

declared medically unfit even for the post of peon. The workman died on 30th

April, 1994.

6. The present writ petition has been filed by the legal representatives

(widow and two sons) of the workman claiming the reliefs -

i. of treating the workman to be in service till date of his demise.

ii. for direction to the DTC to pay to the workman full wages from 26th August, 1993 i.e. the date of judgment in the earlier writ petition and till 30th April, 1994 being the date of demise of the workman.

7. It is the admitted position that all retirement benefits including provident

fund etc stand paid to the petitioners. It is also clarified that the deceased

workman had not opted for the pension scheme and in any case the petitioners

have received the provident fund amount which was to be transferred in the

pension fund in the event of opting for pension. The question which survives is

whether for the purpose of computing the retirement benefits the deceased

workman is to be deemed to be in employment from 15th May, 1991 when his

services were terminated till the date of his demise on 30th April, 1994 and

whether he is entitled to wages of a peon from 26th August, 1993 till his demise.

8. Though this court in the earlier writ petition had directed the respondent

DTC to absorb the workman as a peon but the fact remains that the workman was

not so absorbed. The counsel for the petitioners sought to argue that the

deceased workman worked for DTC from 26th August, 1993 onwards but it

stands admitted in the order dated 1st February, 1994 disposing of the CCP that

the deceased workman had not resumed the duty. This court while disposing of

the CCP, on an interpretation of the order dated 26th July, 1993 disposing of the

writ petition, held that notwithstanding the order dated 26th July, 1993, the

workman was to undergo the medical test for the post of peon. That aspect has

now attained finality. The deceased workman failed to clear the medical test for

peon and inspite of the order dated 26th July, 1993 did not join the respondent

DTC. Thus the question of his having worked for respondent DTC from 15 th

May, 1991 till his demise and/or being entitled to termination benefits on that

basis does not arise. Similarly since he did not resume duties as a peon, the

question of his being entitled to wages from 26th August, 1993 till 30th April,

1994 also does not arise.

9. There is therefore no merit in this petition. The same is dismissed. The

petitioners are however granted liberty to, in accordance with the order dated 26th

July, 1993 in the previous writ petition, make a claim for wages from 15th May,

1991 till 26th July, 1993 before the appropriate fora.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 3rd May, 2010 M