Dtc vs Narendra Kumar
2011 Latest Caselaw 3433 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of decision: 19th July, 2011
+                  W.P.(C) 9108/2008 & CM No.17480/2008 (for stay)

         DTC                                                    ..... Petitioner
                                Through:     Mr. Anand Nandan, Adv.

                                        versus
         NARENDRA KUMAR                                        ..... Respondent
                    Through:                 Mr. G.S. Charya, Adv.

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 June,

2008 of the Industrial Adjudicator on the following reference:-

"Whether Sh. Narender Kumar S/o Shri Govind Ram has been removed from services by the management illegally and/or justifiably, if so, to what relief is he entitled and what directions are necessary in this respect."

of reinstatement with 50% of the back wages, only in so far as the

relief granted to the respondent workman of 50% of the back wages is

concerned; else it is stated that the petitioner employer has no objection to

reinstatement of the respondent workman.

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

stayed. Counter affidavit has been filed by the respondent workman and

the counsels for the parties have been heard.

3. The Industrial Adjudicator has in the award, qua back wages held

that though the respondent workman had in his statement of claim alleged

that he had been unemployed since the date of termination but had not

placed any cogent evidence on record to show that he had been

unemployed all along, after the termination. The award further records that

the petitioner employer also had not been able to show that the respondent

workman was gainfully employed during the period of termination. The

Industrial Adjudicator on such facts awarded only 50% of the back wages.

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

has been bad and thus he should not have been awarded even 50% of the

back wages. The petitioner employer before the Industrial Adjudicator had

pleaded that the respondent workman was a habitual absentee and had been

punished as many as six times in the past for various misconducts. The

Industrial Adjudicator has however not taken the said factor into

consideration while granting the relief of back wages. I am however unable

to agree with the said contention. In my opinion the past misconduct of the

respondent workman would have no bearing on the award for back wages.

The respondent workman is presumed to have already suffered the

consequences of the earlier unfavourable entries if any in the service

record and cannot be punished for the same in proceeding for a different

misconduct. Moreover the Industrial Adjudicator in the present case has

held that the departmental enquiry preceding termination of services of the

respondent workman held by the petitioner employer was invalid and that

the petitioner employer had failed to prove any misconduct before the

Industrial Adjudicator. That is why the relief of reinstatement which has

not been challenged in this petition also, has been granted to the

respondent workman. In such a situation, merely because of past adverse

entries in the service record, no error can be found in the award for 50% of

the back wages.

5. Another petition being W.P.(C)7129/2008 titled DTC v. Ram Avtar

Sharma preferred by the petitioner DTC against another award for 50% of

the back wages was also heard and decided today. The counsel for the

petitioner DTC in that case had relied upon a number of judgments but all

of which also lay down that the method and nature of appointment,

qualifications, length of service, availability of alternative work are the

factors that have to be considered while deciding whether the workman is

to be entitled to full or part back wages. The respondent workman in the

present case was permanently employed with the petitioner employer as a

conductor since the year 1983 and was alleged to have remained

unauthorizedly absent from 1 st November, 1995 to 30th April, 1996 ( for 65

days) from his duty, was charge sheeted and his services terminated vide

order dated 24th March, 1998. Considering the long employment of the

respondent workman with the petitioner employer, no

unreasonableness/perversity can be found in the award of 50% of back

wages.

6. It is however found that though the termination of the respondent

workman was on 24th March, 1998, the dispute was raised by the

respondent workman only in the year 2004 i.e. after six years. There is no

explanation whatsoever for the long delay of approximately six years in

raising the dispute. In my opinion the respondent workman is not entitled

to any back wages for the period prior to raising of the dispute. The said

factor has not been considered by the Industrial Adjudicator. The award to

the said extent is found to be unreasonable and cannot be allowed to stand.

7. The petition is therefore allowed partly. The award in so far as for

payment of back wages from the date of termination i.e. 24 th March, 1998

till the date of reference i.e. 13th July, 2004 is set aside/quashed. The

respondent workman however shall be entitled to 50% of the back wages

from the date of reference i.e. 13 th July, 2004 onwards.

8. Cost of `5,000/- of litigation was directed to be deposited by the

petitioner employer and is reported to have been deposited and if not

withdrawn by the respondent workman till now, may be so withdrawn.

Copy of this order be given dasti.

RAJIV SAHAI ENDLAW (JUDGE) JULY 19, 2011 pp