Delhi High Court
D.T.C. & Ors. vs Sewa Ram on 28 March, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% W.P.(C) 1753/2012
+ Date of Decision: 28th March, 2012
# D.T.C. & ORS. ....Petitioners
! Through: Mr. Uday N. Tiwary,
Advocate
Versus
$ SEWA RAM ...Respondent
Through: None.
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
JUDGMENT
P.K.BHASIN, J: (ORAL)
I have heard learned counsel for the petitioners who are
aggrieved by the award passed by the labour Court directing the
petitioner no. 1 (DTC) to reinstate the respondent-workman in service
after concluding that punishment of removal from service imposed
upon him for some misconduct was illegal and unjustified.
2. Learned counsel for the petitioners has submitted that the
respondent-workman was removed from service after holding a
departmental enquiry in which he was held guilty of an act of
misconduct but due to the fact that the enquiry officer could not be
produced for his cross-examination the labour Court accepted the
challenge to the validity of the departmental enquiry held against the
respondent-workman. It has also been contended that now the
petitioners are not impugning the order of the labour Court dated 7 th
December, 2010 where the preliminary issue of enquiry was decided
against the petitioner no. 1 (DTC).
3. As far as the challenge to the impugned Award on merits is
concerned, a perusal of the impugned award shows that after deciding
the preliminary issue of enquiry against the petitioner no. 1
opportunity was given to it for establishing the alleged misconduct by
adducing necessary evidence before the Court itself. However,
petitioner no. 1 did not avail of that opportunity and adduced no
evidence. In fact, it did not even participate in the trial after that and
further proceedings were held ex-parte against it. The learned labour
Court finally came to the conclusion that since the petitioner had
failed to establish the alleged misconduct of unauthorized absence for
a period of 87 days by not adducing any evidence the punishment of
removal from service awarded to the respondent-workman was illegal
and unjustified. As a result of that conclusion, the petitioner-
management was directed by the labour Court vide its Award dated 8th
April, 2011 to reinstate the respondent-workman in service with full
back wages and other consequential benefits also.
4. Feeling aggrieved, this writ petition was filed by the petitioners
out of whom the petitioner no. 1 is DTC (the employer of respondent-
workmen) and petitioners no. 2 and 3 are its Regional Manager and
Depot Manager respectively.
5. Learned counsel for the petitioners has submitted that this Court
should give one opportunity to the management to adduce evidence
before the labour Court for establishing the misconduct on the part of
the respondent-workman and remand back the matter for a fresh trial.
Another submission made by the learned Counsel, relying upon a
decision of the Supreme Court in "Talwara Cooperative Credit and
Service Society Ltd. vs. Sushil Kumar", (2008) 9 Supreme Court
Cases 486, that even if this Court feels that there is no illegality
committed by the labour Court in directing the reinstatement of the
respondent-workman in service and there is no need of remanding
back the matter to the Labour Court for fresh decision still grant of full
back wages to the respondent-workman from the date of his removal
from service onwards should at least may not be upheld considering
the fact that he had not worked at all during that period. It has also
been contended that no back wages have been awarded to the
respondent-workman also for the reason that he had failed to establish
that he had remained unemployed from the date of his removal
onwards.
6. After having heard learned counsel for the petitioners and going
through the impugned award of the labour Court I find no reason to
interfere in the decision of the labour Court in exercise of writ
jurisdiction considering the fact that the labour Court has decided the
reference against the petitioners after it had failed to avail of the
opportunity granted to it for proving the alleged misconduct and there
is no justification being given as to why the petitioners had not
participated in the adjudication proceedings and not even that they did
not make any attempt to have the ex-parte proceedings set aside when
the matter was still pending before the labour Court. In these
circumstances, when the petitioners themselves are defaulters they
cannot be allowed to urge that the labour Court had committed any
illegality which needs to be rectified by this Court.
7. As far as the grant of full back wages to the respondent-
workman is concerned, I do not find any reason to interfere with that
direction also in view of the fact that it was a discretion available with
the labour Court to award full back wages or only a part thereof and if
the labour Court after considering the fact that the management had
failed to establish the misconduct of the workman had awarded him
full back wages it cannot be said to have exercised its discretion
arbitrarily and unreasonably. The judgment of the Supreme Court
relied upon by the learned counsel for the petitioner does not lay down
that relief of full back wages can never or should never be granted by
the industrial adjudications. In that case the Supreme Court had given
lump sum compensation of ` 2,00,000 to the workman in lieu of
reinstatement and one of the reasons that the employer was a sick unit.
That is not the position here. In fact, in the present case if any part of
back wages of the respondent-workman is denied to him it would be
penalizing him despite his having been exonerated of the charge of
misconduct by the labour Court.
8. This writ petition is, therefore, dismissed in limine.
MARCH 28, 2012/nk P.K. BHASIN, J
