Delhi High Court
Rishi Prakash vs Delhi Transport Corporation on 10 February, 2011
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ L.P.A. No. 508/2010
Rishi Prakash
(since deceased through LRs) ....Appellants
Through Mr. Prashant Katara, Advocate.
VERSUS
Delhi Transport Corporation .....Respondent
Through Mr. J.N. Aggarwal, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
ORDER
% 10.02.2011
SANJIV KHANNA, J.
CM No. 13264/2010
For the reasons contained in the application, the delay
in filing the appeal is condoned. The application stands disposed
of accordingly.
LPA No. 508/2010
By the impugned order and judgment dated 5th April, 2010,
learned Single Judge noticed the contradictory findings recorded in the
two separate proceedings under Section 33(2)(b) and Section 10 of the
Industrial Disputes Act, 1947(Act for short). The Industrial Tribunal in
its order dated 4th July, 2001, in the application under Section 33(2)(b),
had held that the enquiry officer had not provided opportunity to the
workman to establish his case. The workman was denied opportunity to
establish his defence by way of cross-examination of the witnesses of
the management and also from the service record maintained by the
management. The preliminary issue framed was thus decided against
the Management DTC and in favour of the workman. However by the
order dated 31st August, 2001, proceedings under Section 10 of the Act
were decided in favour of the Management DTC and against the
workman. It was held that the termination of the service of the
workman was fair, proper and valid.
2. The award/order of the Labour Court under Section 10 of the Act
was not challenged by the workman and has become final. DTC on the
other hand, had challenged the preliminary findings under Section
33(2)(b) of the Act in Writ Petition NO. 9632/2003. The said writ
petition has been allowed by the impugned order dated 5th April, 2010.
Learned Single Judge has noticed that the workman had remained
absent for 148 days and had applied for leave only for 76 days. It was
observed that the Tribunal while passing the order dated 4th July, 2001
in the application under Section 33(2)(b) of the Act had committed
errors. It has been observed by the learned Single Judge:-
"14. The Tribunal has also not given any
reasoning as to why on the ground of absence
without intimation for the other 72 days the
dismissal of the petitioner under Clause 4(ii) &
19(h) (supra) of the Standing Orders was not
made out. It is significant that the said orders
make absence for more than 10 days liable for
termination. Here the absence without intimation
was admittedly for 72 days. Thus irrespective of
the non communication of the rejection of leave
application for 76 days, the termination of service
of the respondent for the absence of the other 72
days was in any case made out.
15. The order of the Tribunal rejecting the
application under Section 33(2)(b) is thus found to
be perverse on this ground alone and is liable to
be quashed / set aside."
3. It has been held that the ratio and legal finding of the Tribunal
were contrary to the judgment of the Hon'ble Supreme Court in DTC vs.
Sardar Singh, (2004) 7 SCC 574. Several other aspects were also
considered by the learned Single Judge.
4. The workman has expired and his legal heirs have preferred the
present appeal impugning the order dated 5th April, 2010.
5. On 28th October, 2010, the following order was passed :-
"LPA 508/2010
Learned counsel for the appellant prays for
some time to challenge the award passed by the
Labour Court against the workman on a reference
being made by the competent authority.
Matter be listed on 10th February, 2011."
6. Learned counsel for the appellant has stated before us that he
has not received any instructions inspite of communication sent to and
received by the legal heirs of the workman.
7. Keeping in view the aforesaid, we are not inclined to proceed
further. In spite of the opportunity granted, the legal heirs of the
workman have not taken steps to challenge the award. It appears that
they are not interested in prosecuting the present intra court appeal.
Accordingly, the appeal is dismissed.
SANJIV KHANNA, J.
CHIEF JUSTICE
February 10, 2011
kkb
