Delhi High Court

Delhi Transport Corporation vs Shri Ram Phal on 1 April, 2011

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 01.04.2011


+                 RSA No.95/1988



DELHI TRANSPORT CORPORATION            ...........Appellant
                  Through: Mr.J.N. Aggarwal, Advocate.

                  Versus

SHRI RAM PHAL                               ..........Respondent.
                        Through: Mr. P.K. Aggarwal, Ms. Anju
                                 Bhushan & Mr. Mohit Sharma,
                                 Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

    2. To be referred to the Reporter or not?             Yes

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



INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated

13.09.1988 which had endorsed the findings of the trial Judge

dated 29.10.1986 whereby the suit filed by the plaintiff Ram Phal

against the defendant/Delhi Transport Corporation (DTC) seeking a

prayer that his termination order 21.08.1984 be declared null and

void had been decreed in his favour.

2 Present suit was a suit for declaration and injunction. The

plaintiff was an employee of the DTC. He was working as a

conductor. He had been appointed on 18.06.1983; he was put on

probation w.e.f. 08.04.1983 for a period of one year. His probation

was extended for the second time w.e.f. 24.04.1984 to 07.04.1985.

The probation was extended for the reason that an FIR had been

registered against the plaintiff under Sections

304/148/144/323/324 IPC at police station Rahi, Sonepat. The

plaintiff had been acquitted on 17.01.1985, this was admittedly in

the intervening period of the second extended probation period.

His services however already stood terminated on 21.08.1984.

These are admitted facts.

3 The contention of the plaintiff is that his termination order is

illegal and arbitrary; it is liable to be set aside. It was malafide and

violative of the statutory rules and regulations governing the

service conditions of the plaintiff i.e. violative of rule 7 of the Delhi

Road Transport Authority Condition of Service Regulations, 1952

(hereinafter referred to as the „DRTA‟). The defence of the

defendant was that a civil Court has no jurisdiction to entertain the

suit of such a nature; labour court could alone adjudicate upon this

dispute. The probation of the plaintiff was validly extended; his

termination was also legal.

4 On the pleadings of the parties, the following five issues were

framed:-

1. Whether the suit is not maintainable in view of preliminary objection No. (A) to (C) in the written statement? OPD

2. Whether the order of termination of defendant dated 21.08.19984 by the defendant is illegal and invalid? OPP

3. Whether the plaintiff is entitled to relief as claimed in para 9 (A) of the plaintiff? OPP

4. Whether the plaintiff is entitled to the relief claimed in par 9E of the plaint? OPP

5. Whether the plaintiff is entitled to relief claimed in para 9-C of plaint? OPP"

5 Oral and documentary evidence was led. Both the concurrent

findings were in favour of the plaintiff. Both the courts below held

that the civil court has the jurisdiction to entertain the suit of such

a nature; since the claim of the plaintiff was that his termination is

violative of the statutory rules and regulations governing his

service conditions such a suit was maintainable. Further the

probation of the plaintiff could not have been extended for the

second time without recording reasons; this was violative of rule 7

of the DRTA.

6 This is a second appeal. It had been admitted and on

20.10.2010, the following two substantial questions of law were

formulated:-

1. Whether the Civil Court has jurisdiction to entertain a suit for

declaration filed by the workman challenging his discharge? If not, its

effect?

2. Whether it was incumbent upon the Delhi Transport Corporation

(DTC) to give reasons for extension of the period of probation as

alleged in terms of Rule 7 of the Delhi Road Transport Authority

(DRTA) Condition of Service Regulations, 1952? If so, its effect?

7 On behalf of the appellant, it has been urged that the civil

court did not have the requisite jurisdiction to entertain the

present suit. Attention has been drawn to the second schedule of

the Industrial Disputes Act, 1947 (hereinafter referred to as „IDA‟)

which reads as under:-

"Matters with the jurisdiction ol Labour Courts.

1. The propriety or legality of an order passed by an employer under the standing orders;

2. The application and interpretation of standing order;

3. Discharge or dismissal of workmen including re-instatement of, or grant of relief to, workmen wrongfully dismissed;\

4. Withdrawal of any customary concession or privilege;

5. Illegality or otherwise of a strike or lock-out; and

6. All matters other than those specified in the Third Schedule."

8 It is pointed out under clause 3 discharge/dismissal of a

workman including reinstatement is within the jurisdiction and

domain of a labour court, civil court was precluded from going into

this issue. Reliance has been placed upon 1997 (40) DRJ Lahori

Singh Vs. Larsen & Toubro Ltd. to support this submission. It is

pointed out that the landmark judgment of the Apex Court reported

as Premier Automobiles Ltd. etc. Vs. Kamlekar Shantaram Wadke

of Bombay & Ors. reported in 1976 (1) SCC 496 which was

subsequently reiterated by the Apex Court in 1995 (4) SC 348

Rajasthan State Road Transport Corporation Vs. Krishna Kant has

culled out the principles which are applicable to the jurisdiction of

the civil court in relation to an industrial dispute. They read as

under:-

"(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suiter concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suiter is to act an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such a Chapter V-A then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be."

9 Vehement submission of learned counsel for the appellant is

that present is clearly a case of an industrial dispute and what the

plaintiff has sought for is his enforcement of rights which being an

industrial dispute could only be adjudicated upon by the Industrial

Tribunal. On the second substantial question of law No. 2, it is

pointed out that there has been no violation of rule 7 of DRTA.

10 Relevant would it be extract Rule 7 which reads as under:-

" 7. (1) Probation:- All appointments shall be made on probation for a period of one year. The period of probation may be extended by the Appointing Authority in the case of particular individual if the Appointing Authority considers it necessary for reasons which should be recorded provided that in no case shall the period of probation exceed two years.

(2) Confirmation:- After the satisfactory completion of the period of probation in a post an employee who is found fit for confirmation may be confirmed in that post provided that post is included in the sanctioned permanent establishment of the Delhi Road Transport Authority."

11 This rule stipulates that in case the period of probation is

extended after first year, reasons should be recorded. The

contention of the appellant is that although reasons are required to

be recorded yet they do not have to be conveyed to the plaintiff;

there has been no violation of this rule.

12     Arguments have been refuted.

13     Record has been perused. There is no dispute to the second

schedule of the IDA, matters within the jurisdiction of the labour

court have been detailed therein. The principles laid down by the

Apex Court in the case of Premier Automobiles Ltd. are the guiding

principles. They have been quoted hereinabove. The second option

contained therein is a right of election; if the dispute is an

industrial dispute arising out of a right or liability under the

general common law and not under the Act, the jurisdiction of the

civil court is in the alternative; suitor has right to elect his remedy.

The averments in the plaint and the prayer clause have been

perused. Contention of the plaintiff is that the statutory Rules and

Regulations governing his service conditions including rules 7 & 9

have been violatived. The Standing Orders have also not been

adhered to. For all the aforestaed reasons, the termination order

dated 21.08.1984 is liable to be set aside.

14 The impugned judgment had rightly noted that the

respondent is a statutory body and is governed by the statutory

rules and regulations. Even if the dispute raised is an industrial

dispute arising out of a right under general common law, the civil

court would have the jurisdiction to entertain such a suit. In AIR

1987 SC 2043 Ram Kumar Vs. State of Haryana where a bus

conductor had filed a suit challenging the legality of his order of

termination issued by the Haryana State Transport Corporation;

contention of the plaintiff being that his termination is violative of

natural justice, it was held that the civil court had the jurisdiction

to entertain such a suit.

15 The finding in the impugned judgment qua this issue was

returned as follows:-

""Coming to the facts of the present case, DTC is a statutory body and if the statutory body acts in the branch of any of its regulations, the effected party has a right to come to the civil court. The Hon‟ble Supreme Court in AIR 1970 1244 held that when a statutory statute is given to any employee then there has been any violation while determining the service of such employee, such employee is to get relief of declaration that order is null and void and that he continues to be in service. The remedy under the termination of service lies under the industrial Dispute Act but remedy for declaration is in contravention of certain statutory rules is within the jurisdiction of the Civil Court. Thus the labour court and civil courts have concurrent jurisdiction in the matter and as the case of the plaintiff falls under second category as laid down by the Hon‟ble Supreme Court in AIR 1975 Supreme Court 2037. In AIR 1987 S.C. 2043 the Hon‟ble Supreme Court while dismissing the suit on merits did not up set findings of the ld. ADC that the civil court had jurisdiction to try the suit in which termination of a conductor of Haryana Roadways was challenged. I, therefore, hold that the civil courts have jurisdiction to try the suit. The ld. Trial court rightly decided issue no. 1 in favour of the plaintiff and against the defendant and the present suit is not marred as alleged by the defendant."

16 There is no perversity in this finding. A civil suit was

maintainable; jurisdiction of the civil court was not ousted.

Substantial question of law No. 1 is answered in favour of the

respondent.

17 On the second substantial question of law, the impugned

judgment had on the applicability of Rule 7 a finding as follows:-

" Thus as per rules normally period of probation is one year and some can be extended for another one year to but such extension can only be done by the authority with reasons which should be recorded. Letter dated 24-4-84 whereby the period of probation of plaintiff was extended upto 7-4-85 is exhibit DW1/7 and there are no reasons in this letter which weighed with the authority to extend the probation of plaintiff. Thus the very expansion period of probation of the plaintiff by the Appellant vide Ex. PW1/7 is illegal and without jurisdiction and the same is in contravention of Rule 7(1) governing the service rules of the employees of the D.T.C. Once the expansion of period is held to be illegal and without jurisdiction, the plaintiff is deemed to have been confirmed to the post of conductor in terms of rules 7 (2) of service rule. The service of the plaintiff in this case have been terminated vide letter dated 21.04.1984 under regulation 9 (A) (i) of the DRTA. Regulation, 1952 i.e. service has been terminated without assigning any reason and without any notice during the period of probation bus as already discussed above, extension of period of probation of plaintiff is without jurisdiction and against the rules and plaintiff is deemed to have been confirmed under Rule 7 (2) as no reason were given for extending the period of probation as required under rule 7(1) and as such rule 9 (A) (i) has got no application. It is not disputed that the plaintiff in fact was later on acquitted by the trial court of the criminal case. Even if that was a case under section 302 IPC. The ld. Trial court has thus rightly decree the suit of the plaintiff and the findings of the ld. Trial court are based upon evidence and documents on the record. The judgment of the ld. Trial court is in consonance with rules and regulations governing the service conditions of the plaintiff.

10 Coming to the cross-objection filed by the plaintiff, the ld. trial court though passed judgment for declaration declaring that termination and extension of probation of the plaintiff are held to be illegal and inoperative and plaintiff still continues to be in service as the employees of the defendant but declined to issue declaration that the plaintiff was also entitled to full salary and allowances and other benefits, from the date of termination of the service. The judgments relied upon by the ld. Trial court are not applicable to the facts of the present case. I fail to make out what weighed with the trial court to refuse to grant benefit of full salary and allowances especially when the trial court had granted declaration that order terminating the service and extension of period of probation of the plaintiff was illegal and without jurisdiction. What the plaintiff was seeking was an essential collar which was to follow and in this suit for declaration he was not required to pay the court fees as held by the ld. Trial court. The cross objections are, therefore, allowed. The judgment and decree of

the trial court is modified and decree for declaration is passed in the following terms that the suit of the plaintiff is decreed that termination of the plaintiff and extension of period of probation are held to be illegal and plaintiff is deemed to continue in service and is entitled to full salary and allowances and other benefits from 21.08.1984 onwards.

18 There is no perversity in this finding. Rule 7 of the DRTA has

been quoted hereinabove. Admittedly in terms thereof reasons had

to be recorded at the time of second extension of probation.

Contention of learned counsel for the appellant that even if the

reasons were required to be recorded, they did not have to be

conveyed is also not supported by any evidence. There was no

evidence forthcoming by the appellant/defendant in the courts

below to substantiate this submission. Nothing was brought on

record either oral or documentary to show that these reasons had

even been recorded in the record of the defendant. This was rightly

observed and noted in the impugned judgment.

19 In DRJ 1985 (9) 118 Richpal Singh Vs. Secretary (Labour)