Delhi High Court
Delhi Transport Corporation vs Kishan Pal on 28 May, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28th May , 2012
+ LPA No.334/2012.
% DELHI TRANSPORT CORPORATION ....Appellant
Through: Mrs. Avnish Ahlawat, Adv.
Versus
KISHAN PAL ..... Respondents
Through: Mr. S.L. Kashyap, Adv
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The appellant DTC impugns the order dated 10 th February, 2010 of
the learned Single Judge allowing the application of the respondent
workman under Section 17B of the Industrial Disputes Act, 1947 as well as
the order dated 14 th February, 2012 dismissing CM No.7696/2010 preferred
by the appellant DTC for modification of the earlier order dated 10th
February, 2010. Notice of this appeal was issued. We have heard the
counsels for the parties
2. The respondent workman was working as a driver with the appellant
DTC and was on 26 th June, 1991 declared medically unfit and given pre-
mature retirement. The industrial dispute raised by the respondent workman
was referred and the Industrial Adjudicator vide award dated 17 th
November, 2002 directed reinstatement. Challenging the said award
W.P.(C) No.7883/2004 was filed by the appellant DTC.
3. The appellant DTC, in response to the application filed by the
respondent workman under Section 17B of the ID Act, was unable to show
the respondent workman being employed in any establishment and
accordingly payment under Section 17B, from the date of filing of the
affidavit by the respondent workman of non-employment onwards, was
directed vide order dated 10 th February, 2010 supra.
4. The appellant DTC applied (vide CM No.7696/2010 supra) for
modification of the aforesaid order under Section 17B of the Act pleading
that the respondent workman had attained the age of 55 years of
superannuation of driver in the appellant DTC on 31 st October, 2005 and
thus was not entitled to wages under Section 17B of the Act thereafter.
5. The learned Single Judge dismissed the aforesaid application vide
order dated 14th February, 2012, holding that the same was in the nature of
seeking review of the earlier order dated 10 th February, 2010 and had been
filed beyond the time prescribed therefor. It was further held that the remedy
if any of the appellant DTC if aggrieved by the said order was by way of
appeal.
6. Accordingly, the present appeal, also challenging the order dated 10 th
February, 2010, has been preferred along with an application for
condonation of delay in preferring the appeal in so far as the order dated 10th
February, 2010 is concerned. Since the application of the appellant DTC for
modification of the order was pending and had been dismissed only on 14 th
February, 2012, we are satisfied that the appellant DTC had sufficient
reason for not preferring the appeal earlier and accordingly condone the
delay.
7. In so far as the merits of the controversy is concerned, the same is no
longer res integra. A Division Bench of this Court in Delhi Transport
Corporation v. Shri Dharam Pal (Ex.Driver) 160 (2009) DLT 555 has held
that even where the benefit of Section 47 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
is to be given and the drivers retained in service inspite of medical
disability, their age of superannuation would be 55 years only, i.e. as of a
driver and not of 60 years as of other employees.
8. No other argument has been raised before us.
9. We accordingly allow this appeal and set aside the order dated 14 th
February, 2012 of the learned Single Judge in CM No.7696/2010 and
modify the order dated 10th February, 2010 on CM No.10865/2004 under
Section 17B of the Act by holding that the appellant DTC is liable to pay
17B wages only till the date the respondent workman attains the age of
superannuation of 55 years.
No order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
MAY 28, 2012
'pp '..
