Dtc vs P.O, Industrial Tribunal No.Ii & ...
2011 Latest Caselaw 861 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 14th February, 2011

+                           W.P.(C) No.6868/1999

%        DTC                                               ..... Petitioner
                            Through:      Mr. Vinay Sabharwal & Ms. Neha
                                          Sabharwal, Advocates

                                     Versus

         P.O, INDUSTRIAL TRIBUNAL NO.II & ORS ..... Respondents
                       Through: None.

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 petition impugns the award dated 9th February, 1999 of the

Industrial Tribunal answering the following reference in favour of the

respondent No.3 workman and against the petitioner DTC:

"Whether the reversion of Sh. Raj Kumar from the post of A.T.I. to Conductor is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

2. Notice of the petition was issued and operation of the award stayed.

The said order has continued to be in force till now. The respondent No.3

workman filed a counter affidavit and to which a rejoinder was filed by the

petitioner DTC. The respondent No.3 workman died during the pendency

of the present petition and vide order dated 28th July, 2010 his legal

representatives were brought on record. However none has been

appearing for the said legal representatives since after 29 th April, 2010.

Even the litigation expenses deposited by the petitioner pursuant to the

orders in this petition have not been withdrawn.

3. The respondent No.3 workman was employed and working as a

Conductor with the petitioner DTC. The petitioner DTC vide Office

Order dated 5th December, 1985 promoted the respondent No.3 workman

as Assistant Traffic Inspector with effect from 9th December, 1985 on the

terms and conditions mentioned therein. One of the terms and conditions

was that the promotion of the respondent No.3 workman was on

officiating basis and the respondent No.3 workman could be reverted to

his original post of Conductor at any time without notice and without

assigning any reason therefor. The petitioner DTC vide order dated 4 th

December, 1986, in terms of the condition of officiating promotion as

contained in the order promoting the respondent No.3 workman, reverted

the respondent No.3 workman to the substantive post of Conductor with

immediate effect.

4. Industrial dispute with respect to the said reversion was raised and

the reference aforesaid made.

5. It was inter alia the contention of the petitioner DTC that the

aforesaid did not constitute an industrial dispute which could have been

referred to the Industrial Tribunal. The reference was also contested on

merits.

6. As far as the merits are concerned, the Industrial Tribunal inspite of

the term in the letter of promotion to the effect that the respondent No.3

workman could be reverted at any time without notice, held that since the

petitioner DTC in its written statement before the Industrial Tribunal had

pleaded that the respondent No.3 workman was put on probation and

treating an officiating promotion as different from promotion with

probation, held that the judgment of this Court in K.L. Sehgal Vs. The

Chairman, State Bank of India 1987 (1) SLR 440 applies and the

principles of natural justice having not been complied before reverting the

petitioner, held the reversion to be not legal and unjustified.

7. The copy of the written statement filed before the Industrial

Tribunal has been perused. Though the preliminary objections taken

therein appear to have been lifted from some other case and not found

relevant for the controversy, else the petitioner DTC in the written

statement has referred to the letter of promotion as well as of reversion and

also to the Statutory Service Regulations, 1952 as per which all

departmental promotions are to be on officiating basis for a period of one

year and if the work and conduct of the employee during the period of

such officiating promotion is not satisfactory, the workman to be reverted

to the original position without assigning any reason. It is also pleaded

that the work and conduct of the respondent No.3 workman during the

period of officiating promotion was not satisfactory and hence he was

reverted.

8. The letter of reversion in the present case does not attribute any

reasons for reversion. It is of reversion simplicitor in accordance with the

right reserved in the letter of promotion. On the contrary, a perusal of the

judgment in K.L. Sehgal (supra) relied upon by the Industrial Tribunal

shows that in that case the order of reversion itself recorded that it was

being passed because the petitioner in that case had failed to show

satisfactory progress in work and conduct and upon finding that the

petitioner in that case was reverted because of a finding of lapses on his

part and which finding was reached without giving him opportunity of

explaining. On the contrary, there is nothing like this in the present case.

Thus, it will be seen that there is a material difference in the facts of the

present case than that in K.L. Sehgal.

9. The counsel for the petitioner has also argued that the award as well

as the judgment of the Single Judge of this Court in K.L. Sehgal wrongly

proceeded on the premise that in probation also notice has to be given.

Reliance is placed on Radhey Shyam Gupta Vs. U.P. State Agro

Industries Corporation Ltd. AIR 1999 Supreme Court 609 laying down

that only where termination during probation is preceded by an enquiry

and evidence is received and findings as to misconduct are arrived at, are

the principles of natural justice to be complied with and not otherwise.

The Supreme Court in State of Punjab Vs. Sukhwinder Singh AIR 2005

SC 2960 has held that the probationer does not have any right to the post

and where a superior officer, in order to satisfy himself whether the

employee concerned should be continued or not makes enquiry for the

purpose, it would be wrong to hold that the enquiry which was held was

really intended for the purpose of imposing punishment. I have recently in

Duli Chand Vs. P.O. Labour Court-VIII MANU/DE/0582/2010 and

DTC Vs. Shyam Sunder MANU/DE/1259/2010 dealt in detail with the

said aspect of the matter.

10. The award impugned in this petition is thus found to have

proceeded on a wrong premise of law and cannot be sustained and has to

be necessarily set aside.

11. Though the counsel for the petitioner has also raised the argument

about the very maintainability of the industrial dispute and has in this

regard relied upon The Bombay Union of Journalists Vs. The 'Hindu',

Bombay AIR 1963 Supreme Court 318 but in view of the aforesaid, need

is not felt to deal with the said aspect.

12. The petition therefore succeeds. The award impugned in the

petition is set aside and quashed.

No order as to costs.

The amount deposited by the petitioner be refunded and released

after eight weeks herefrom to the petitioner.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 14, 2011 „gsr‟