Uoi vs Prem Kumar
2011 Latest Caselaw 868 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Date of decision: 14th February, 2011

+                   W.P.(C) 10654/2006 & CM No.14317/2008 (for stay).

          UOI                                                              ..... Petitioner
                                        Through:       Mr. Kumar Rajesh Singh, Advocate.

                                                    Versus
          PREM KUMAR                                                      ..... Respondent
                                        Through:       Mr. Prabhakant Varma, 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 petition impugns the order dated 6 th June, 2005 of the Labour

Court on an application filed by the respondent workman under Section 33

C (2) of the Industrial Disputes Act, 1947 and directing the petitioner

Railways to pay a sum of `1,80,000/- to the respondent workman.

2. Notice of the writ petition was issued. Vide order dated 20 th

October, 2008 the petitioner directed to deposit the amount aforesaid of

`1,80,000/- with the Registrar General of this Court and subject to the said

deposit, the operation of the impugned order was stayed. The said amount

is informed to have been deposited and kept in a fixed deposit.

3. The respondent workman, before filing the application aforesaid

under Section 33 C (2) (supra), had filed a petition being OA

No.2646/1990 before the Central Administrative Tribunal (CAT) pleading

that he was employed with the petitioner Railways as a Fireman 'C' and

the petitioner Railways were arbitrarily not taking him on duty and had

also withheld his pay w.e.f. March, 1990. Reply was filed by the petitioner

before CAT pleading that the respondent workman was granted leave and

was to join duty on 15 th February, 1990 but had remained away from work

and had absconded.

4. The CAT finding that the petitioner Railways had neither taken back

the respondent workman on duty nor suspended him as would have been

done had he been absconding, vide order dated 6 th March, 1995 directed

the petitioner Railways to permit the respondent workman to join duties

and further directed that if in respect of any period of service the pay and

allowances of the work were to be denied to him, it should be done only

after giving a proper notice to show cause in this behalf within two months

from the date of receipt of the said order of CAT and after considering his

representation. It was further directed that if no such notice was sent, the

petitioner Railways should pay all the pay and allowances in accordance

with law within four months of the receipt of the order.

5. It is not in dispute that pursuant to the aforesaid order of CAT the

respondent workman was made to join duty in the year 1995 itself. The

respondent workman in or about the year 2000 filed the application

aforesaid under Section 33 C(2) before the Labour Court for computation

of the amount due for the period March, 1990 to March, 1995 i.e. for the

period during which the petitioner Railways claimed the respondent

workman to be absconding/ on unauthorized absence and the respondent

workman claimed to have been refused duty and the period of the

pendency of the proceedings before CAT.

6. It is not in dispute that for the said period, a sum of `1,80,000/- was

due. The Labour Court held that the witness of the petitioner Railways had

admitted that the order of CAT was received on 24 th June, 1995; it was

observed that in accordance with the order of CAT the notice for denying

emoluments was to be served on the respondent workman within two

months i.e. by 24 th August, 1995. It was found that no such notice had

been sent; only on 17th October, 1995 a notice for disciplinary proceedings

for unauthorized absence was served on the respondent workman. The

Labour Court being of the view that in terms of the order of CAT, show

cause notice had not been given within two months, found the respondent

workman to be entitled to the said amount.

7. Aggrieved therefrom the present petition has been preferred.

8. I have enquired from the counsel for the petitioner Railways as to

what happened to the disciplinary proceedings if any initiated pursuant to

the notice given on 17th October, 1995. The counsel is unable to answer.

He however draws attention to the report of the Inquiry Committee

annexed to the additional affidavit dated 5 th November, 2007 filed on

behalf of the petitioner Railways in pursuance to the order dated 7 th July,

2006 in the present proceedings. The counsel for the petitioner Railways is

however unable to state as to whether the disciplinary authority of the

petitioner Railways in pursuance to the said report passed any order

against the respondent workman or not. The counsel for the

petitioner Railways seeks adjournment to find out.

9. The writ petition has remained pending before this Court for the last

four years and was today listed for final hearing. All requisite instructions

ought to have been obtained before the hearing and when after fully

hearing the matter such adjournments are claimed, they derail the hearing

and waste the time spent on hearing.

10. Else, there is no dispute that within two months of the receipt of the

order of CAT no action for denying the respondent workman the

emoluments was initiated. Notice given on 17 th October, 1995 also is for

misconduct owing to unauthorized absence and which as aforesaid had

already been the subject matter of the proceedings before CAT.

11. The counsel for the respondent workman has rightly contended that

the petitioner Railways did not challenge the order of CAT and which has

attained finality and all that the Labour Court has done is to implement the

same. Reliance in this regard is placed on D. Krishnan v. Special Officer,

Vellore Cooperative S.M. 2008(6) SLR 786.

12. The counsel for the petitioner has argued that the application under

Section 33 C (2) was filed after five years from the order of the CAT. The

Labour Court for this reason has denied any interest to the respondent

workman. No error capable of interference is found in the order of the

Labour Court on this ground also.

13. The petition is therefore without any merit and is dismissed.

However in the peculiar circumstances, no order as to costs. The amount

of `1,80,000/- deposited in this Court together with interest accrued

thereon be released to the respondent workman after six weeks of today.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 14, 2011 pp..