Delhi Transport Corporation vs Devender Kumar
2011 Latest Caselaw 4360 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   L.P.A. No. 598/2010

%                       Date of Decision: September 6, 2011

Delhi Transport Corporation                  ....Appellant
                 Through Mr. Sumeet Pushkarna, Advocate.

                    VERSUS

Devender Kumar                                   .....Respondent
                    Through    Mr. Anil Mittal, Advocate.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

                               ORDER

Devender Kumar, respondent herein, a conductor in the

appellant, Delhi Transport Corporation, was removed from service on

16th April, 1987. The respondent raised an industrial dispute and

succeeded vide award dated 16th January, 2006.

2. In the award, it was noticed that vide order dated 6th May, 2005,

it was held that the enquiry report was unfair and the enquiry had not

been conducted in accordance with law. The appellant, thereafter, was

granted an opportunity to lead evidence to prove misconduct, but no

evidence was led and the evidence was closed by order dated 2nd

December, 2005.

3. The appellant unsuccessfully challenged the said award in Writ

Petition (Civil) No. 15523/2006 which has been dismissed vide

impugned order dated 22nd February, 2010. Learned Single Judge while

dismissing the writ petition has held that the industrial adjudicator has

recorded findings of fact and once the appellant did not lead evidence

to prove the charge there was no justification to exercise extra ordinary

writ jurisdiction under Article 226 of the Constitution and the court

would not reappreciate the facts as an appellate forum.

4. It may be noticed that the Industrial Adjudicator in the award

dated 16th January, 2006, had directed that the respondent would be

reinstated with all consequential benefits but had restricted the back

wages to 50%. Learned Single Judge has not interfered with the award

of back wages.

5. In the appeal it is admitted that the respondent was reinstated in

service vide letter dated 8th June, 2010. Learned counsel for the

respondent has submitted that the respondent was allowed to resume

duty in lieu of payment under Section 17B of the Industrial Disputes

Act, 1947 w.e.f. 16th February, 2009, without prejudice to the rights and

contentions of the parties and had reported for duty in July, 2009, but

has not paid regular salary till 8th June, 2010. Learned counsel for the

respondent has submitted that he would be satisfied and would not

claim back wages in case regular salary as per normal scales are paid by

the appellant from the date the respondent had reported for duty in

July, 2009. We find this suggestion given by the learned counsel for the

respondent is just, fair and should be accepted. Accordingly, the award

dated 16th January, 2006, is modified to the extent that the appellant

has been directed to pay 50% back wages. The said direction is set

aside. It is directed that the appellant will pay back wages to the

respondent from the date the respondent had reported for work after

the letter dated 16th February, 2009 was issued. However, the period

between 16th April, 1987 till the respondent joined the duty will not be

treated as break in service and would be counted for the purpose of

pension and retirement benefits.

6. The appeal is allowed to the extent indicated above. There will

be no order as to costs.

SANJIV KHANNA, J.

CHIEF JUSTICE September 6, 2011 kkb