Delhi High Court
Dtc vs Ram Avtar Sharma on 19 July, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th July, 2011.
+ W.P.(C) 7129/2008
DTC ..... Petitioner
Through: Mr. Anand Nandan, Adv.
Versus
RAM AVTAR SHARMA ..... Respondent
Through: Mr. Rakesh Kumar & Mr. Maneesh
Arora, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
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 challenge in the writ petition is to the award dated 2 nd May, 2008
of the Industrial Adjudicator on the following reference:-
"Whether the removal from service of Sh. Ram Avtar Sharma is
illegal and/or unjustified and if so, to what relief is he entitled to
and what directions are necessary in this respect?"
of reinstatement with 50% of the back wages, only insofar as the relief
granted to the respondent workman of 50% of the back wages is concerned;
else the respondent workman has in pursuance to the award been reinstated.
2. Notice of the writ petition was issued and the implementation of the
award stayed. The pleadings have been completed and the counsels for the
parties have been heard.
3. The Industrial Adjudicator has in the award, qua back wages held that
the respondent workman in his statement of claim had stated that he has not
been gainfully employed since the date of illegal termination and that he
tried for job continuously but could not get the same and was being
supported by his brother and elder son. The award further records that the
respondent workman in his cross-examination reiterated that he tried for job
in many private firms but could not get the job. The Industrial Adjudicator
in the face of such evidence and holding that since the respondent workman
had not done any work for the petitioner employer since termination /
dismissal he could not be entitled to full back wages, awarded 50% of the
back wages to the respondent workman.
4. The counsel for the petitioner employer has at the outset contended
that the past service record of the respondent workman in the present case is
bad and thus he should not have been awarded 50% even of the back wages.
The counsel is however unable to show that any such plea was taken before
the Industrial Adjudicator. In fact, no such plea has been taken in the writ
petition also and has been taken for the first time in the rejoinder to the
counter affidavit of the respondent workman. There is thus no basis
whatsoever for the said argument. Even otherwise, I entertain serious doubts
that the same can be a factor for depriving the respondent workman of back
wages inasmuch as it is presumed that the consequences of the bad service
record, if any have already been borne by the respondent workman.
5. The counsel for the petitioner employer has next contended that the
award for back wages cannot be automatic; that the burden is on the
respondent workman and since the period between the dismissal of the
workman and the award directing the reinstatement is of nearly 13 years, the
respondent workman ought not to be allowed even 50% of the back wages.
Reliance in this regard is placed on:-
(i) Rajasthan Lalit Kala Academy Vs. Radhey Shyam (2008) 13
SCC 248;
(ii) Talwara Cooperative Credit And Service Society Ltd. Vs.
Sushil Kumar (2008) 9 SCC 486;
(iii) General Manager, Haryana Roadways Vs. Rudhan Singh
(2005) 5 SCC 591.
(iv) APSRTC Vs. B.S. David Paul (2006) 2 SCC 282.
(v) UP State Electricity Board Vs. Laxmi Kant Gupta (2009) 16
SCC 562.
6. On inquiry it is informed that the respondent workman in the present
case was employed with the petitioner since the year 1978; he was charge
sheeted on 25th January, 1994; was dismissed from service on 30th June,
1995 and the award directing reinstatement is of the year 2008. Though the
counsel for the petitioner employer had at one stage also sought to argue that
the dispute was raised belatedly but a perusal of the award shows that the
dispute was raised immediately after dismissal and the reference came to be
made in the year 1996 itself.
7. The judgments relied upon by the counsel for the petitioner employer
also, lay down that the method and nature of appointment, qualifications,
length of service, availability of alternative work are the myriad factors that
have to be considered while deciding whether the workman is to be entitled
to full or part back wages. In the present case, considering the long
employment of the respondent workman with the petitioner employer and
there being nothing to show that the long time of 13 years taken before the
Industrial Adjudicator was attributable to the respondent workman, no
unreasonableness / perversity can be found in the award of 50% of the back
wages. The petitioner employer has thus not been able to make out any case
for challenge to the same.
8. The Industrial Adjudicator had directed the petitioner employer to pay
50% back wages within two months of the award failing which the same is
to incur interest at 18% per annum. Though under the award the petitioner
employer has become liable for such interest also but in the facts and
circumstances of the case and since there was an interim order of stay, it is
deemed expedient to direct that in the event 50% of the back wages in terms
of the award are released by the petitioner employer to the respondent
workman within six weeks of today, the petitioner employer shall not be
liable to pay any interest thereon. However, if the back wages are not so
released within six weeks as aforesaid, the petitioner shall also be liable for
interest thereon in accordance with the award i.e. from two months after the
date of the award till the date of payment.
9. Costs of `5,000/- of litigation have been deposited by the petitioner in
this Court. The respondent workman is at liberty to withdraw the same.
Copy of this order be given Dasti.
RAJIV SAHAI ENDLAW
(JUDGE)
JULY 19, 2011
Bs..
