Delhi High Court

Delhi Transport Corporation vs Raj Kumar on 13 May, 2011

Author: Veena Birbal

*            HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: May 13th , 2011

+ W.P.(C) 4738/2005


Delhi Transport Corporation                          ..... Petitioner
                        Through: Ms Saroj Bidawat, Advocate

                   -versus-

Raj Kumar                                           ..... Respondent

Through: Mr Ajay Paul, Advocate

CORAM:-

HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in Digest? Yes

Veena Birbal, J

1. By way of this petition under Article 226 of the Constitution of

India, petitioner has challenged the impugned award dated 10th

December, 2003 passed in ID No.50/1997 by the learned Presiding

Officer, Labour Court No.VII, Delhi wherein petitioner has been directed

to reinstate the respondent with continuity of service and 30% of the back

wages.

2. Briefly the facts relevant for the disposal of the present petition are

as under:-

Respondent was offered appointment as Retainer-cum-Driver as

per terms and conditions of memo dated 30 th June, 1988 by

petitioner/management on purely temporary basis. Respondent accepted

the same and was appointed as a Retainer-cum-Driver w.e.f 5th July,

1988. On 16th December, 1988, respondent had filled Character

Verification Form (in short referred to as „CVF‟) wherein he left column

no.12 of the said form blank and concealed about his involvement in a

criminal case registered against him vide FIR No.201 dated 3.7.1988 u/s

498A/406/34 IPC PS Janak Puri, New Delhi. It is alleged that respondent

deliberately concealed the said information in order to get the

appointment. It is stated that petitioner came to know about the alleged

concealment from the report of DCP dated 28th February, 1989 wherein it

was brought to the notice of petitioner that the case arising out of

aforesaid FIR was pending trial against respondent in the court of Shri

Nand Kumar Goyal, MM and the next date of hearing was 7th June, 1989.

On the basis of said information, petitioner had dispensed the services of

respondent w.e.f 31st January, 1990 under para (xiv) vide memo dated

30th January, 1990 after following due procedure

of law. Respondent preferred an appeal on 20.2.1996 against the order of

dispensation of service which was dismissed.

Thereafter, respondent raised an industrial dispute challenging his

dispensation from service which was referred for adjudication to the

Labour Court with the following terms of reference:-

"Whether the action of the management to dispense with the service of Sh.Raj Kumar Chopra is illegal and/or unjustified and if so to what relief is he entitled and what direction are necessary to this respect."

Respondent in statement of claim had alleged that his service was

dispensed with w.e.f. 30.1.1990 by the petitioner illegally and without

following due process of law. Respondent further alleged that there was

no concealment on his part as is alleged and that he was acquitted by the

criminal court on 14th September, 1994 in the aforesaid FIR. Thereafter

he had made several representations but the petitioner did not take him on

duty. Respondent had prayed that he be reinstated with full back wages.

Petitioner opposed the statement of claim by filing written

statement wherein it was alleged that the respondent had deliberately

concealed the facts about the registration of aforesaid FIR against him

while filling up column no.12 of CVF in order to secure the appointment.

It was further alleged that on coming to know of the same the services of

respondent were dispensed with after conducting proper enquiry as per

rules as such action of the petitioner was just and fair.

On the pleadings of the parties, following issues were framed:-

"1. Whether the domestic enquiry was not conducted according to principles of natural justice and if so, its effect?

2. As per terms of reference."

3. On 19.11.2003, the Labour Court passed the following order:-

"Pr.: Workman in person.

AR for the management.

It is admitted by the AR for the DTC that no enquiry in the present case was conducted and the workman was removed on the basis of not disclosing of a criminal case U/s 498-A/406 IPC vide FIR No. 201/88 PS Janak Puri which fact came to knowledge on police verification on the information furnished by the workman. The workman has submitted that it was a matrimonial case against his brother and that case has been quashed by the Hon‟ble Delhi High Court on 19.8.94. In support of which he has filed certified copy of the order dated 14.9.94 passed by the Metropolitan Magistrate. In view of these facts, to come up for appropriate order U/s 11-A of the I.D. Act on 29.11.2003.

POLC-VII/19.11.2003."

4. On 10.2.2003, impugned award is passed by the Labour Court

wherein petitioner/management has been directed to reinstate the

respondent with continuity of service and 30% of back wages.

5. Aggrieved with the same, the present petition is filed.

6. Learned counsel for the petitioner has contended that CVF was

filled by respondent on 16th December, 1988 and the criminal case was

registered against the respondent vide the aforesaid FIR on 3rd July, 1988,

as such, respondent had the knowledge of registration of case against him

and the respondent had deliberately concealed the said fact as such it was

a justified ground to dispense with the services of respondent. It is

contended that Section 25F of Industrial Disputes Act (in short referred to

as the „Act‟) was not attracted in the present case as such finding of lower

court that the same ought to have been complied with by petitioner is

illegal. It is further contended that the respondent was only a temporary

employee and had worked only for 1½ years, under these circumstances,

the order of reinstatement with continuity of service and 30% back wages

is erroneous.

7. On the other hand, the stand of respondent is that the petitioner has

admitted before the Labour Court that no inquiry was conducted before

dispensing the service of respondent, as such, action of petitioner in

terminating his services was illegal and the Labour Court has rightly

granted relief to him. It is contended that action of petitioner in

dispensing with the service of respondent is punitive, as such petitioner

ought to have held enquiry against him before taking any action against

him. It is contended that there is no concealment by respondent as is

alleged. Respondent was never aware of registration of aforesaid FIR

against him nor was he ever arrested in the said case, as such there is no

concealment on his part. It is contended that impugned award is legal and

valid and calls for no interference.

8. I have considered the submissions and perused the record.

9. The main allegation against the respondent/workman is that he had

concealed about registration of a criminal case vide FIR No.201 dated

3.7.1988 u/s 498A/406/34 IPC PS Janak Puri, New Delhi while filling up

the CVF on 16.12.1988. The FIR was registered on the complaint of

sister-in-law of respondent i.e. his brother‟s wife against her husband,

mother-in-law, petitioner and his wife. The stand of respondent is that he

was not aware of FIR when he filled up the CVF on 16th December, 1988.

It is admitted position that the petitioner never charge sheeted the

respondent in respect of allegations levelled against him by petitioner.

Though petitioner had taken a stand in the written statement before the

Labour Court that proper inquiry was conducted as per rules wherein

respondent had admitted the charges against him. However, during the

pendency of the case before the Labour Court, as noted above, the

petitioner on 19.11.2003 had admitted that no inquiry was conducted.

Had the inquiry being conducted, the truth would have been revealed.

The Labour Court has returned the finding that the column 12 of „CVF‟

refers to the cases where a person had been tried or any trial is pending in

the court of law or has been fined or punished or released on bail after

conviction. It calls for information as to whether he had been tried for

any offence or any case is pending against him or has been fined or

detained in jail. The pendency of FIR is not mentioned therein. It may

also be mentioned that no material has been brought by the petitioner to

substantiate its stand that the respondent was aware of registration of

aforesaid FIR against him when he filled up the CVF either before

Labour Court or before this court. It is also not the case of petitioner that

respondent was called by the police for interrogation prior to 16.12.1988.

A report under Section 173 Cr.P.C./challan was sent by the police to

court on 22.8.1989 which was after submission of CVF by the

respondent. Under these circumstances, it can‟t be said that there was

any concealment on the part of respondent as is alleged.

It has also come on record that it was a matrimonial case which

was registered on the complaint of sister-in-law of respondent and the

main allegations were against petitioner‟s elder brother i.e husband and

mother-in-law of complainant. The FIR was finally quashed by this court

vide order dated 19.8.1984.

The relevant finding of the Labour Court in this regard is as

under:-

"Without proving on the merits of his case, it may be noted that column no.12 of verification form calls information of a case pending in court of law or a case in which punishment has been meted out to him by being fined or detained in jail. Till the police takes the matter to the court by filing a charge sheet after investigation U/s 173 Cr.P.C and court binds the accused by summoning, the investigation by police on the basis of any FIR or complaint does not debar any person from his employment from the job. Column no.12 of the verification form refers only to those cases where a person has already been tried in a court of law where he has been fined or punished or released on bail after conviction for further trial etc. It is common knowledge that in matrimonial offence U/s 498A/406 IPC, there is tendency to implicate every family members. In this case, it is seen that challan was sent by police to court on 22.8.89, so knowledge of pending case in court can be attributed only subsequently and not in 1988 when the form was filled. Copy of attestation form and copy of challan have been filed by the DTC in this court."

In view of above discussion, I find no illegality in the finding of

the Labour Court that there was concealment on the part of respondent

while filling up CVF as is alleged.

10. Keeping in view the facts and circumstances of the case, the

finding of the Labour Court about non-compliance of Section 25F of the

Act also does not call for any interference of this court.

11. In view of above discussion, finding of the Labour Court that

dispensation of service of respondent/workman by the petitioner was

illegal and unjustified does not call for any interference.

12. By the impugned award, the Labour Court has granted relief of

reinstatement with continuity of service and 30% of back wages to the

respondent. The status of respondent was that of a temporary employee

and he had worked only for 1½ year, the said aspect of the matter has not

been considered by the Labour Court. The Apex Court in catena of

judgments has clearly laid down that if termination of a person is held

illegal, the Labour Court is not supposed to direct reinstatement with back

wages and compensation instead of reinstatement has been held to meet

the ends of justice. Reference in this regard is made to judgment of

Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr.:

AIR 2009 SC 3004. The relevant para of which is as under:-

"7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was

found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."

It has been further held in the above referred case that while

awarding the compensation various factors like manner and method of

appointment, nature of appointment, length of service are relevant.

13. The Labour Court has ignored the material facts like length of

service and his temporary status while granting relief to respondent.

Under these circumstances, the grant of relief of reinstatement vide

impugned award is erroneous and accordingly the same is set aside.

14. Considering the totality of facts and circumstances, the award of

compensation of ` 75,000/- to the respondent shall meet the ends of

justice. The petitioner is, therefore, directed to make the payment of `

75,000/- within 6 weeks from today failing which the same will carry the

interest @ 9% per annum.