Ram Krishan & Ors. vs D.T.C. & Anr.
2010 Latest Caselaw 2788 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P.(C) 4551/1998

%                                               Date of decision: 26th May, 2010

RAM KRISHAN & ORS.                        ..... Petitioners
                Through: Ms Meenu Mainee, Advocate.

                                      Versus
D.T.C. & ANR.                                           ..... Respondents
                               Through: Mr. Alok Shankar, Advocate.


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. The nine writ petitioners, by this writ petition impugn the award

dated 10th August, 1998 of the Labour Court holding the termination of

services of the petitioners by the respondent no.1 DTC to be legal and

valid and finding the petitioners to be not entitled to any relief. Notice to

show cause as to why the petition be not admitted was issued. The

respondent no.1 DTC has filed a counter affidavit to the petition. Rule

was issued on 5th July, 2000. The parties were sent to the Lok Adalat of

this Court but no settlement could be arrived at. The writ petition was

dismissed for non-prosecution on 25th August, 2009. C.M.

No.12731/2009 was filed for restoration. On 7th May, 2010 it was

clarified that the said application shall be considered when the counsels

are ready to address on the merits of the case. The counsels for the

parties have been heard. Accordingly, C.M. No.12731/2009 for

restoration of the writ petition dismissed for non-prosecution on 25th

August, 2009 is allowed and the writ petition restored to its original

position.

2. The nine petitioners along with nine other persons filed a joint

claim statement before the Labour Court. It was their case that they were

employed as Linemen with the respondent no.1 DTC on different dates

between the years 1980-82; that on 21st July, 1984 the respondent no.1

DTC offered to them the post of Junior Clerk; that as per the offer letter,

the petitioners were required to clear a qualifying typing test within two

years therefrom. The petitioners accepted the offer on the terms

contained in the offer letter. The petitioners however failed to clear the

typing test and were terminated from employment. It is the contention of

the petitioners that the clause in the letter aforesaid requiring them to

clear a typing test was superfluous inasmuch as the work of a Junior

Clerk for which they were employed, did not require any typewriting

work inasmuch as for typing, there are other posts of Stenographers &

typist clerks. The petitioners also contend that the action of the

respondent no.1 DTC is discriminatory inasmuch as a large number of

other Junior Clerks, who also had not cleared the qualifying typing test,

had been regularized. It was yet further the case of the petitioners that in

a number of other cases, exemption from qualifying the typing test had

been granted by the respondent no.1 DTC. They further pleaded that the

provisions of Section 25F of the ID Act, had not been complied with for

the termination of their services.

3. The respondent no.1 DTC contested the aforesaid claim pleading

that the initial appointment of the petitioners as Linemen was on ad-hoc

basis and there is no regular post of Linemen; that the petitioners were

absorbed in the cadre of Junior Clerk subject to the condition of their

qualifying a typewriting test within two years; that the petitioners had

accepted the said condition of appointment and now cannot challenge

the same. The respondent no.1 DTC further contended that exemption

from typing test under the Service Rules could be granted only to the

physically handicapped candidates, who produced certificate of their

handicap issued by the concerned authorities.

4. The Labour Court did not accept the contention that the petitioners

were not required to do any typing work or that the condition in the

appointment letter to the said effect was arbitrary. It was held that the

post of a Junior Clerk is like the post of LDC; in all Government offices

LDCs are appointed after taking typing test and/or are required to do

typing. The Labour Court further held that the petitioners, after having

availed the benefit of such condition in the appointment letter could not

challenge the same. No case of discrimination was also found. It was

held that the exemption from qualifying the typing test granted to the

handicapped persons and/or the persons employed in sports quota was

justified and the petitioners were not equally placed as the physically

handicapped persons and the persons coming through the sports quota.

Section 25F was held to be not applicable for the reason of the

termination of the services of the petitioners not being by way of

retrenchment.

5. The counsel for the petitioners has at the outset contended that

even as per the letter of appointment, the services of the petitioners were

only "liable to termination" if they failed to pass the typewriting test

within a period of two years from the date of their appointment and were

to be not necessarily terminated, upon the petitioners failing to pass the

typewriting test. It is contended that from the evidence on record it is

clear that relaxation had been granted by the respondent no.1 DTC to

others. It is contended that the petitioners are out of job since the year

1986 and are suffering great hardship. Attention is invited to the order

dated 1st October, 2002 in C.W. 6204/2000 titled Raj Srivastava Vs.

D.T.C. & Anr. in which reference is made to an office order dated 22nd

November, 1978 of the DTC. As per the said officer order, the Junior

Clerks, who had completed the period of probation were to be treated as

regular, waiving the condition of the typewriting test. This Court vide

order dated 1st October, 2002 (supra) directed benefit of the said office

order to be extended to Raj Srivastava, the petitioner therein. It is

contended that the petitioners in the present case are also entitled to a

similar order as in that writ petition. It has been enquired from the

counsel for the petitioners as to whether the petitioners had before the

Labour Court placed reliance on any such office order. The counsel has

fairly conceded that no reliance on the said office order was placed

before the Labour Court. The said office order does not find mention in

the award of the Labour Court. The petitioners did not refer to the said

office order in the writ petition or in any subsequent affidavit.

Resultantly, the respondent no.1 DTC has not had any occasion to

respond to the same.

6. This Court is of the opinion that the judicial review under Article

226 of the Constitution of India, does not entitle this Court in the

aforesaid facts to allow new material to be taken into consideration and

on which the respondent DTC has not had any occasion to respond. The

pleadings in the Raj Srivastava case are also not before this Court. From

the order dated 1st October, 2002 in the Raj Srivastava case, it is not

clear whether it is an entire office order dated 22nd November, 1978,

which is recorded therein. The petitioners have been out of employment

of the respondent no.1 DTC as aforesaid since the year 1986 and it is

now not deemed expedient to allow a new factual controversy to be

raised. The Supreme Court recently in Ramesh Kumar Vs. State of

Haryana AIR 2010 SC 683 held that a plea raised for the first time

before the High Court and that too only during the arguments ought not

to have led the High Court to interfere with the factual finding rendered

by the Labour Court. To the same effect is the dicta of the Division

Bench of this Court in Mitahn Lal Goyal Vs. R.K. Baweja 119 (2005)

DLT 282 holding that a plea requiring an investigation of fact cannot be

raised before the High Court for the first time. Thus no reliance can be

permitted to be placed on the aforesaid order dated 1 st October, 2002 of

this Court in the Raj Srivastava case or on the office order mentioned

therein.

7. The counsel of the petitioners states that Raj Srivastava was

similarly placed as the petitioners. The counsel for the petitioners

contended discrimination on this ground as well. However, this Court is

unable to find the name Raj Srivastava in the order of reference of the

dispute to the Industrial Adjudicator from which this petition has arisen.

It is also not known whether there was any interim order in favour of Raj

Srivastava. In the present case, there is none. There can be no

discrimination on the basis of material not placed at the appropriate time.

8. The counsel for the petitioners has further contended that the

petitioners have been discriminated qua others. It is contended that the

witnesses of the respondent no.1 DTC in cross-examination admitted

that exemption had been given to certain persons from clearing the

typing test but did not volunteer that the said persons fall in the

exempted categories. The counsel for the petitioners in cross-

examination of the witness aforesaid of the respondent no.1 DTC ought

to have put that the exempted persons did not fall in the handicapped or

the sports category but did not do so. In the absence of the petitioners' in

the cross-examination having elucidated complete facts in this regard,

the award cannot be interfered with on the basis of surmises and

conjunctures. There is no material before this Court to determine

whether the said persons fall in the exempted categories or not.

9. The findings of the Labour Court are findings of fact. No case of

discrimination has been held to be made out. There is nothing to show

that the finding of the Labour Court is a perverse finding or a finding

contrary to the material on record. The view formed by the Labour Court

on the basis of the evidence lead, is a possible view on the available

material and the Legislature having not provided for the remedy of

appeal against the order of the Labour Court, this Court in the exercise

of discretion under Article 226 of the Constitution of India would not

interfere on such grounds.

10. As far as the contention of the counsel for the petitioners of the

appointment letter only making the services of the petitioners "liable to

termination" and not for automatic termination is concerned, in the

opinion of this Court, the intent of the letter was that the petitioners were

given probation/contingent employment subject to clearing the typing

test. The petitioners if aggrieved by the condition ought to have

challenged the same. The petitioners accepted the same condition and

attempted to clear the typing test but failed in the same. It is apparent

that the petitioners were aware that to be entitled to continue in

employment they were required to clear the typing test. The view of the

Labour Court that the petitioners having taken advantage of the said

letter and having gained appointment, even though under probation or

contingent, under the respondent no.1 DTC cannot now be permitted to

challenge such a condition is also not capable of interference in these

proceedings. The offer letter is quite clear. The appointment was purely

temporary. The petitioners were to be on probation for one year. They

cannot now be heard to say that inspite of their failing in the typing test,

a decision to terminate or not to terminate them was required to be taken.

The counsel for the petitioners has also drawn attention to the chapter in

Swamy's Complete Manual on Establishment and Administration for

Central Government Offices, relating to "typewriting test for LDC in

subordinate and attached offices and confirmation". However there is

nothing to show that the same is applicable to the respondent no.1 DTC.

The same provides for grant of exemption from typing test. Whether to

grant such exemption or not is an executive decision and this Court

cannot issue a mandamus to the respondent no.1 DTC to grant

exemption to the petitioners from the typing test and to which the parties

had agreed. The Division Bench of this Court in Ram Kumar Vs. MCD

MANU/DE/2897/2005, relying on various dicta of the Supreme Court,

held that even a non statutory executive order/notification is not

enforceable by a writ of mandamus. Moreover, the challenge of the

petitioners to non-grant of exemption to them on the ground of

discrimination has not been upheld. The petitioners thus cannot contend

otherwise now.

11. The counsel for the petitioners lastly contended that the condition

for clearing of the typing test is against the principles of natural justice.

The said argument cannot be understood. It was upto the respondent no.1

DTC to decide the qualifications which are required from its LDCs.

There can be no breach of the principles of natural justice in the

respondent no.1 DTC insisting on those seeking employment with it,

qualifying the typing test.

12. This Court also does not find any error in the order of the Labour

Court insofar as it held no case of retrenchment to have been made out.

The appointment of the petitioners as aforesaid was temporary on

probation and contingent. Upon the petitioners failing to qualify the

typing test within the time agreed as per the contract between the

petitioners and the respondent no.1 DTC their employment/contract

automatically came to an end and the case is covered by Section

2(oo)(bb) of the ID Act.

13. There is no merit in the petition, the same is dismissed. No order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 26th May, 2010 bs