Delhi Transport Corporatioin vs Sh. Deep Chand Through Lrs & Ors.
2012 Latest Caselaw 2113 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 28th March, 2012
+                          LPA No.188/2012

%     DELHI TRANSPORT CORPORATIOIN           ....APPELLANT
                  Through: Mrs. Avnish Ahlawat, Adv.

                                    Versus
    SH. DEEP CHAND
    THROUGH LRS & ORS.                ..... RESPONDENTS
                  Through: Ms. Padma Kumar, S., Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                 JUDGMENT

RAJIV SAHAI ENDLAW, J.

Caveat Pet. No.240/2012.

1. The counsel for the caveators/respondents has appeared; the caveat

stands discharged.

CM No.4208/2012 (for condonation of delay).

2. This application is filed for condonation of 40 days delay in filing the

appeal. The counsel for the respondents states that subject to the appeal

being finally heard at the admission stage itself, the delay be condoned. This

is acceptable to the counsel for the appellant. Since the appeal is being

finally heard today itself, the delay in filing the appeal is condoned.

3. The CM stands disposed of.

LPA No.188/2012 & CM No.4207/2012 (for stay).

4. This Intra-Court appeal impugns the judgment dated 17 th November,

2011 of the Single Judge of this Court dismissing W.P.(C) No. 5979/2001

preferred by the appellant DTC. The said writ petition was filed by the

appellant DTC impugning the award dated 14th November, 2000 of the

Industrial Adjudicator. The Industrial Adjudicator vide the said award had

directed the appellant DTC to reinstate the respondent workman with full

back wages. Since the respondent workman, during the pendency of the writ

petition, had died on 10th April, 2010, the learned Single Judge while

dismissing the challenge to the award, directed the appellant DTC to pay to

the legal heirs of the deceased workman the full wages which the deceased

workman would have earned till his retirement on attaining the age of

superannuation on 28th February, 2004.

5. The deceased workman was appointed as a driver on 14 th May, 1983.

The medical check held on 27th July, 1991 found him unfit for performing

the duty as driver. The appellant DTC on 4th August, 1992 pre-maturely

retired the deceased workman from employment. The departmental appeal

preferred by the deceased workman was also dismissed. The deceased

workman raised an industrial dispute on which the following reference was

made:-

"Whether the termination of service of Shri Deep Chand by way of retirement is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

6. The Industrial Adjudicator in the award dated 14 th November, 2000

(supra) held the action of the appellant DTC, of pre-maturely retiring the

deceased workman owing to disability acquired by deceased workman

during employment, to be in contravention of The Persons with Disabilities

(Equal Opportunities, Protection of Rights & Full Participation) Act, 1995

and held the deceased workman to be entitled to the benefit of Section 47

thereof. The termination of services of deceased workman by way of pre-

mature retirement was thus held illegal and the appellant DTC was directed

to reinstate the deceased workman in service and treat him in continuous

employment without any break in service and to give him full back wages

from the date of pre-mature retirement till the date of reinstatement. It was

further directed that even if there was no vacancy, the deceased workman be

kept on supernumerary post until a suitable post was available or till he

attains the age of superannuation.

7. It was the contention of the appellant DTC in the writ petition that

the Industrial Adjudicator erred in applying the provisions of the Disabilities

Act which was enacted after the deceased workman was pre-maturely

retired.

8. The learned Single Judge relying on DTC v. Harpal Singh 156

(2009) DLT 481 (DB) held the benefit of the Disabilities Act to be available

even in cases where the premature retirement was prior to the coming into

force of the said Act but the proceedings were pending. The learned Single

Judge further held that since the appellant DTC had after finding the

deceased workman unfit for performance of duties as driver continued him

for some time as Ticket Tallying Collector though on a temporary

arrangement and subject to regular vacancy, for this reason also it could not

thereafter have pre-maturely retired him by invoking Regulation No.10 of

the Delhi Road Transport Authority (Conditions of Appointment and

Service) Regulations, 1952. As aforesaid since the workman had died on

10.04.2010, direction for payment of wages till the date of superannuation

on 28th February, 2004 was sought.

9. We may notice that independently of the Disabilities Act and prior

thereto also, in various judgments (as detailed in DTC vs. Suraj Bhan 168

(2010) DLT 614). DTC was held not entitled to terminate employment on

ground of disability acquired during employment. To the same effect is the

judgment of another Division Bench of this Court in DTC vs. Shri

Manmohan MANU/DE/1377/2011.

10. The counsel for the appellant DTC has limited the challenge in the

present appeal to the date on which the deceased workman would have

superannuated. It is stated (and it is not disputed by the counsel for the legal

heirs of the deceased workman) that the learned Single Judge while

directing payment of wages till 28 th February, 2004 has taken the age of

superannuation as 60 years. It is argued that the deceased workman

employed as driver was to superannuate at the age of 55 years and which he

would have attained on 28th February, 1999. It is thus contended that the

direction for payment of wages beyond 28th February, 1999 is bad.

11. Though the counsel for the deceased workman had sought to urge that

since the reinstatement of the deceased workman would not have been as a

driver, the retirement age of a driver ought not to be applied to him but the

counsel for the appellant DTC has invited our attention to the judgment

dated 9th January, 2009 of the Division Bench of this Court in LPA

No.1214/2007 titled DTC v. Shri Dharam Pal and in other connected

matters and which unequivocally lays down that the age of superannuation

of a driver in DTC is 55 years and Section 47 of the Disabilities Act does

not extend the tenure of service of a driver and the benefit granted to such

driver despite incurring disability during the tenure of service is up to 55

years only and does not extend the service beyond 55 years so as to enable

him to continue in service, may be at a lower post, for which the normal age

of retirement is 60 years. The same view was reiterated in Harbhajan

Singh vs. DTC MANU/DE/0065/2010 (DB).

12. In view of the dicta aforesaid of Coordinate Benches and with which

we respectfully agree, the matter need not be discussed any further.

13. We accordingly partly allow this appeal by modifying the direction

contained in the judgment of the learned Single Judge to payment of wages

till 28th February, 1999 instead of till 28th February, 2004. Else we concur

with the judgment of the learned Single Judge.

14. The appeal is disposed of; no order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

MARCH 28, 2012/pp