Delhi High Court
Jeet Singh vs Delhi Transport Corporation on 18 April, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: April 08, 2013
Judgment Pronounced on: April 18, 2013
+ WP (C) 4510/2012
JEET SINGH .....Petitioner
Represented by: Mr.Rakesh Kumar, Advocate.
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Represented by: Mr.J.S.Bhasin, Advocate with Ms.
Rashmi Priya, Advocate.
WP (C) 6764/2012
YASHPAL SINGH .....Petitioner
Represented by: Mr.J.P.Sengh, Sr.Advocate
instructed by Mr.Sumeet Batra,
and Ms.Ankita Gupta, Advocates.
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Represented by: Mr.Sumeet Pushkarna, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. On the allegation of remaining on unauthorized leave, petitioner
Jeet Singh was removed from service on July 06, 1992 and since an
industrial dispute was pending between DTC and the Union of
Employees working in DTC, an application was filed before the
Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act,
1947, seeking approval, which was dismissed by the Industrial Tribunal
on October 16, 2000, leading to the said decision being challenged by
DTC vide WP(C) 4162/2001. Jeet Singh filed WP(C) 4826/2001 praying
that he should be reinstated in service with full back wages in view of the
decision dated October 16, 2000, in his favour.
2. On September 10, 2009, writ petition filed by DTC was dismissed
and the one filed by Jeet Singh was allowed requiring Jeet Singh to be
reinstated in service with back wages to be paid.
3. In the interregnum, Jeet Singh attained the age of 55 years on April
09, 2002 and the age of 60 years five years later, on April 09, 2007.
4. Thus, as of September 10, 2009, the question of reinstating him in
service as a Driver, a post held by him under DTC, did not arise because
as per service rules framed by DTC, age of superannuation of Drivers is
55 years, but with a right to be further re-employed in service for 5 more
years contingent upon being found to be medically fit at the age of 55
years; 56 years; 57 years; 58 years and 59 years.
5. Jeet Singh has been paid back wages till he attained the age of 55
years and the dispute remains whether he is entitled to be paid back
wages for another 5 years till he attained the age of 60 years.
6. Vide impugned order dated March 15, 2012 the Tribunal has
negated the claim of Jeet Singh.
7. As regards petitioner Yaspal Singh. He too was a Driver with DTC
and was removed from service on June 21, 2000 when he was aged 52
years. He challenged the penalty imposed by raising an industrial dispute
and succeeded when the Industrial Tribunal pronounced an Award in his
favour on October 06, 2004, by when he was 56 years of age. The Award
was challenged by DTC by an under WP(C) 1292/2005 which was
dismissed on December 08, 2009.
8. He too has an issue pertaining to back wages to be paid to him
beyond the age of 55 years which he turned in the year 2003. He
challenges the order dated February 14, 2012 passed by the Tribunal
rejecting his claim.
9. Shri J.P.Sengh learned senior counsel appearing for Yashpal Singh
vehemently urged that for the wrong act of the Management, Yashpal
Singh cannot be deprived the benefit of serving till the age of 60 years.
Learned senior counsel urged that DTC ought to have been vigilant in
preserving the evidence pertaining to Yashpal Singh being medically fit
by examining him when he attained the age of 55 years notwithstanding
issue being pending in this Court pertaining to the Award dated October
06, 2004. Similar argument was advanced by Shri Rakesh Kumar,
Advocate who appeared for petitioner Jeet Singh.
10. Undisputedly, the applicable Service Rules framed by DTC require
Drivers to superannuate when they attain the age of 55 years. Further
right to serve upto the age of 60 years is contingent upon the incumbent
being found medically fit each year on attaining the age of 55 years and
onwards till the age of 60 years.
11. In legal parlance this would translate to : Drivers under DTC have
a vested right to serve till the age of 55 years subject to disciplinary
action being taken against them and have a contingent right to serve till
the age of 60 years. The condition constituting the contingency being :
Found to be medically fit at the age of 55 years, 56 years, and so on till
the age of 60 years.
12. Violation of a vested right would have different consequences vis-
à-vis violation of a contingent right. Consequences of violating a vested
right are reasonably foreseeable; and in the context of a right to serve till
a fixed term, it would be reasonably foreseeable that ensuing damages
would be the wages which would have been earned by the employee,
subject to the law pertaining to mitigation of damages by the employee.
But, the consequence of violation of a contingent right in the form of
damages would be in the realm of uncertainty and speculation, for the
reason what would have happened when the contingency envisaged came
into being would not be known.
13. One would have no idea as to what would be the medical condition
of the two petitioners when they turned 55 years of age. Their right to
further serve was contingent upon being found medically fit. If they were
found to be medically unfit, that would have been the end of their service.
14. Though not strictly applicable, but a principle of law which
emerges from the decision of the Supreme Court reported as AIR 1992
SC 1020 Baikuntha Nath Das & Anr. vs. Chief Medical Officer, Baripada
& Anr. can be applied with analogy.
15. The issue before the Supreme Court was whether un-
communicated adverse entries in the ACR of a Civil Servant could be
considered by Screen Committees while considering premature
retirement under FR 56 (j). There were two conflicting judgments of the
Supreme Court, one holding the view that considering adverse un-
communicated entries amounted to a situation akin to condemning a
person without hearing and thereby affecting his right. The other took the
view that it did not. In Baikuntha Nath Das case (supra) the Supreme
Court held that since a right of a Civil Servant was to serve for a
minimum period by which pension was earned and thereafter the right to
serve was contingent upon the person being not opined to be dead wood,
taking into account un-communicated adverse entries in the ACR could
not be said to be violative of the right of the Civil Servant.
16. To our mind the aforenoted decision guides us in the destination
which we have to reach. The guidance is that issues pertaining to vested
and contingent rights in service jurisprudence have to be applied by
recognizing the difference between a vested right and a contingent right.
17. Pertaining to Yashpal Singh, we may record that on March 26,
2008 upon a medical examination he was found unfit, a decision which
he questions with reference to his driving licence being renewed by the
Transport Department on March 24, 2008 based upon a Doctor's opinion
that he was fit. But we do not go into this issue for the reason Yashpal
Singh attained the age of 55 years in the year 2003 and by the year 2008
he was 60 years of age.
18. We hold that the petitioners would be entitled to back wages only
till they attained the age of 55 years because their vested right was to
serve till they attained the age of 55 years. To serve beyond 55 years the
right was a contingent right upon being found medically fit.
19. The writ petitions are accordingly dismissed but without any order
as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
APRIL 18, 2013
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