Ashok Kumar Verma vs D.T.C
2011 Latest Caselaw 4389 Del

     *         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 8th September, 2011

+                                  W.P.(C) 1353/2008

         ASHOK KUMAR VERMA                                       ..... Petitioner
                    Through:              Ms Kittu Bajaj, Adv.

                                       Versus
         D.T.C                                            ..... Respondent
                            Through:      Mr Uday N. Tiwary, Adv. for DTC.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may        Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             Not necessary

3.       Whether the judgment should be reported            Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, earlier employed as a driver with the respondent DTC,

was vide order dated 12th September, 1994 retired prematurely. Upon

industrial dispute being raised, the Industrial Adjudicator vide award dated

15th September, 2007, though holding that the respondent DTC had

arbitrarily and prematurely retired the petitioner from service after he had

served DTC for 11 years and that the said premature retirement was illegal

and unjustified, has granted relief of payment of lump-sum compensation of

` 1 lac only to the petitioner in lieu of reinstatement, backwages and other

benefits. Aggrieved therefrom the present petition has been filed.

2. The only reason given by the Industrial Adjudicator for the relief

granted is that there was no pleading of the petitioner that he had been

unemployed since the date of termination and there was no evidence also of

the petitioner in this regard.

3. Notice of the petition was issued and the pleadings have been

completed. The counsels have been heard.

4. Neither has the respondent DTC in its counter affidavit impugned the

finding of the Industrial Adjudicator of the illegality of the premature

retirement of the petitioner nor has the counsel for the respondent DTC

during the hearing impugned the said finding. Thus the only question for

consideration is whether in view of findings returned, the award of

compensation of ` 1 lac only is appropriate and whether the petitioner is

entitled to be reinstated in service as sought.

5. It has been enquired from the counsels as to whether the petitioner has

already attainted the age of superannuation. It is informed that the petitioner

if had continued in service, would have superannuated on 31st August, 2008,

though subject to being found medically fit, would have been entitled to

yearly extensions for maximum five years that is till he attained the age of

60 years. The counsel for the petitioner contends that the petitioner is

medically fit and is still holding a valid driver's licence and if he is so re-

employed, would continue for another two years from now.

6. Upon further enquiry whether the award amount of ` 1 lac has been

paid, it is informed that it is the plea of the respondent in the counter

affidavit that the same was tendered but not received by the petitioner.

7. The counsel for the petitioner has relied on:

(a) Jaipal Sharma Vs. The P.O., Labour Court No. VIII 102 (2003)

DLT 60 where this Court for the reason of the Industrial Adjudicator having

not given any reasons for awarding only 50% of the backwages for four

years, directed payment of full backwages;

(b) Vikramaditya Pandey vs Industrial Tribunal AIR 2001 SC 672 laid

down that ordinarily once the termination of services of an employee is held

to be wrongful or illegal, the normal relief of reinstatement with full

backwages should be available and it is open to the employer to specifically

plead and establish that there were special circumstances which warranted

either non-reinstatement or non-payment of backwages. It is thus argued

that it was for the respondent DTC to plead and prove that the petitioner was

employed elsewhere and the Industrial Adjudicator erroneously has placed

the onus on the petitioner;

(c) Workmen of Messrs Firestone Tyre & Rubber Company of India vs

Management AIR 1973 SC 1227 to contend that the power of the Industrial

Adjudicator under Section 11A of the ID Act to interfere with the

punishment is only in the cases where the dismissal is upheld and not when

the dismissal is set aside.

8. Per contra, counsel for the respondent DTC has contended that there

has been a shift in the law and reference in this regard has been made to

Uttar Pradesh State Electricity Board vs Laxmi Kant Gupta (2009) 16 SCC

562 and Senior Superintendent Telegraph (Traffic), Bhopal, vs Santosh

Kumar Seal (2010) 6 SCC 773 to contend that the Apex Court has been

leaning against automatic reinstatement and has been granting compensation

in lieu of reinstatement. The counsel for the respondent DTC contends that

the compensation awarded is adequate in the circumstances.

9. It has been enquired from the counsel for the petitioner as to whether

the petitioner had pleaded or proved at any place before the Industrial

Adjudicator that he was unemployed. The counsel for the petitioner has in

this regard invited attention to a letter dated 18th May, 1994 of the petitioner

which though does not expressly state that he was unemployed but stated

that the dire financial state in which the petitioner was. The counsel for the

respondent DTC contends that the said letter is of a date prior to raising the

dispute and there was no plea or evidence before the Industrial Adjudicator

to the said effect.

10. I am of the view that it is not appropriate to burden the DTC with

retiral benefits including pension of the petitioner when the services of the

petitioner, even if illegally, were terminated long back on 12th September,

1994 and when the petitioner has worked for 11 years only as against the

normal 30 years. It is also unbelievable that the petitioner in the said long

span of time has remained totally unemployed. The respondent DTC cannot

be directed to pay pension to those who have not worked for it till attaining

the age of superannuation.

11. Notwithstanding so, I am not satisfied with the quantum of

compensation awarded. Unfortunately, no parameters have been laid down

in any of the judgments for computing the said compensation in lieu of

reinstatement. The Courts in various judgments, on assessment of the

particular facts, have been awarding compensation. Upon it being asked

from the counsel for the petitioner as an officer of the Court as to what

should be the amount of compensation, she has fairly and without prejudice

to her rights and contentions informed that during mediation, though

remained unsuccessful, the petitioner had offered settlement subject to being

paid pension as per his entitlement. It is stated that the minimum eligibility

for earning pension is of 10 years of service and the petitioner even with

eleven years of service would have been entitled to pension of

approximately `5000/- per month. The counsel for the respondent DTC

states that he has no instructions in this regard and is unable to state whether

the petitioner had crossed the eligibility threshold for pension and/or award

pension of `5000/- as claimed.

12. In the entirety of the circumstances, considering that the sum of `1 lac

also has remained in the pockets of the respondent DTC for the last nearly

four years even though tendered and would today have a value of nearly `2

lacs, it is deemed expedient to enhance the compensation of from

`1,00,000/- to ` 4,25,000/-, payable by the respondent DTC to the petitioner

within eight weeks from today failing which the same, besides other

remedies of the petitioner shall earn interest at the rate of 10% p.a. In the

circumstances, the petition is disposed of with no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 8, 2011 mb (corrected & released on 20.09.2011)