Delhi Transport Corporation vs Sh. Gurcharan Singh
2012 Latest Caselaw 2233 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of decision: 30 March, 2012
+                    LPA 120/2012
%        DELHI TRANSPORT CORPORATION                ....Appellant
                     Through:   Ms. Avnish Ahlawat & Ms. Latika
                               Chaudhary, Advs.
                          Versus
    SH. GURCHARAN SINGH                     ..... Respondent
                  Through: Mr. Vinay Sabharwal & Mr. Rakesh
                             Kumar, Advs.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                  JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. This Intra-Court appeal impugns the orders dated 9 th September, 2011 and 29th November, 2011 of the learned Single Judge in W.P.(C) No.6173/2003 preferred by the appellant DTC. The said writ petition has been filed impugning the order dated 21 st August, 2002 of the Industrial Adjudicator dismissing the application of the appellant DTC under Section 33(2)(b) of the Industrial Disputes Act, 1957 for approval of its action of removal of the respondent workman from service.

2. Notice of the aforesaid writ petition was issued. Though the appellant DTC had sought interim stay of the order dated 21st August, 2002 of the Industrial Adjudicator but the said application was dismissed on 24 th September, 2003. The appellant DTC however notwithstanding dismissal of the application for interim stay did not take the respondent workman back into service.

3. The respondent workman thereafter applied under Section 17B of the Act. Though the appellant DTC could not give particulars of employment elsewhere of the respondent workman but pleaded that the respondent workman having already attained the age of superannuation, was not entitled to wages under Section 17B of the Act.

4. The learned Single Judge however vide order dated 9 th September, 2011 allowed the application under Section 17B of the Act and directed payment thereunder w.e.f. 1st May, 2008 i.e. the date of filing of the application and till the date of superannuation of the respondent workman.

5. The appellant DTC thereafter filed CM No.17807/2011 for clarification of the aforesaid order under Section 17B of the Act, pleading that the age of retirement of a driver in DTC, as the respondent workman was employed was 55 years and thus the respondent workman was entitled to 17B wages only till attaining the age of 55 years (which he had attained prior to 1st May, 2008) and not beyond that.

6. The aforesaid application was disposed of vide order dated 29 th November, 2011 which records the contention of the respondent workman that the age of retirement was 60 years. The order further records that it had been agreed between the counsels for the parties that this controversy be kept open to be resolved at an appropriate stage and the appellant DTC without prejudice to the contention shall pay the wages from 1 st May, 2008 till the respondent workman attains the age of 60 years.

7. This appeal has been filed impugning the orders dated 9th September, 2011 and 29th November, 2011 (supra).

8. However what we find is that the order dated 9th September, 2011 directs payment under Section 17B from the date of filing the application till the date of superannuation. The age of superannuation is not specified therein. The counsel for the appellant DTC has been unable to specify any error in the said order.

9. As far as the order dated 29 th November, 2011 is concerned, the same, we find is a consent order. It is the settled principle in law that no appeal against such a consent order lies. [See S. Thilagavathy v. State of Tamil Nadu (2011) 6 SCC 365].

10. Thus this appeal has no merit and is dismissed. Before parting with the case we may notice that the appellant DTC has also filed LPA 132/2012 and LPA 134/2012 arising from the same/another writ petition preferred by the appellant DTC qua the disputes with the respondent workman and which appeals also we have disposed of today albeit by a separate order. It may also be noticed that we are already seized of the question of the age of retirement of drivers in DTC and the age till which they are entitled to wages under Section 17B, in other matters. We clarify that it will be open to the appellant DTC to approach the learned Single Judge for modification of the order dated 29th November, 2011 in accordance with our judgment to be pronounced on the said aspect. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE MARCH 30, 2012/pp..