Delhi Transport Corporation vs Bhagat Singh
2013 Latest Caselaw 580 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 7th February, 2013

+      LPA No.77/2013, CM No.2247/2013 (stay), CM No.2248/2013
       (for condonation of delay in filing), CM No.2249/2013 (exemption)
       & CM No.2250/2013 (for condonation of delay in re-filing)

       DELHI TRANSPORT CORPORATION              ..... Appellant
                   Through: Mr. Sumeet Pushkarna and Mr.
                            Gaurav Sharma, Advocates.
                                    Versus
    BHAGAT SINGH                                               ..... Respondent

Through: None.

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra court appeal impugns the judgment dated 24 th September,

2012 of the learned Single Judge of this Court dismissing W.P.(C)

No.619/2006 preferred by the appellant. The said writ petition was preferred

by the appellant impugning the Award dated 22 nd November, 2002 of the

Industrial Adjudicator on the following reference:

"Whether the removal of Sh. Bhagat Singh from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect."

and holding the departmental enquiry held by the appellant to be not

fair and proper or in accordance with the principles of natural justice and

further on the basis of the evidence led before the Industrial Adjudicator,

holding the respondent workman to have not committed any misconduct for

which enquiry was required and directing the appellant to reinstate the

respondent workman with 75% of back wages.

2. The writ petition was preferred after three years and two months from

the publication of the Award. The learned Single Judge vide the impugned

judgment has dismissed the writ petition on this ground alone. It is held that

the appellant had failed to show sufficient cause/reason for delay. It is

further held that though no period is prescribed for invoking the writ

jurisdiction under Article 226 of the Constitution of India but the same does

not mean that the jurisdiction can be invoked as and when desired, and the

appellant having not been vigilant of its rights, cannot be allowed to take

advantage of its own wrong/delay.

3. Inspite of the dismissal of the writ petition on the ground of delay, this

appeal is accompanied with applications for condonation of delay of 56 days

in filing and 20 days in re-filing this appeal. The reasons given for delay in

preferring the appeal are administrative.

4. We have heard the counsel for the appellant.

5. The Supreme Court recently in Post Master General Vs. Living

Media India Limited (2012) 3 SCC 563 has struck a different note about

condoning delays on the part of government/governmental agencies and has

held that such delays are not to be condoned. We are of the view that the

petition preferred by the appellant itself having been dismissed only for the

reason of the delay in preferring the same, the appellant and its officials

ought to have treated the matter as a special one and ensured, that there is no

delay at least in preferring the appeal against such dismissal of the writ

petition. However, the appellant proceeded in the matter of filing the appeal

at its pace and there is nothing to show that extra care, which was required to

be taken, was taken.

6. We are even otherwise of the opinion that the facts of the present case

do not require any interference.

7. The respondent workman was appointed as an Assistant Painter with

the appellant w.e.f. 15th April, 1977. He was on 7 th May, 1987 charged with

unauthorized absence of 125½ days, during the period January 1986 to

December 1986 and upon being found guilty, was dismissed from service on

15th January, 1988.

8. Though the counsel for the appellant, before us has argued (and which

ground does not appear to have been taken in the writ petition or before the

learned Single Judge) that the respondent workman raised the dispute after

nearly eight years in the year 1996, but is unable to refute that during the

said time application under Section 33(2)(b) of the Industrial Disputes Act,

1947 may have been pending.

9. The Industrial Adjudicator in the Award dated 22nd November, 2002

held that the absence of the respondent workman was treated by the

appellant as leave without pay and the charge framed against the respondent

workman also was of having obtained leave without pay for 125½ days on

false basis. The Industrial Adjudicator further held that leave without pay

did not amount to any misconduct and accordingly directed reinstatement

with 75% of back wages.

10. Though undoubtedly, the judgment of this Court in LPA No.361/2002

titled Sardar Singh Vs. Delhi Transport Corporation on which reliance was

placed by the Industrial Adjudicator was reversed by the Supreme Court in

Delhi Transport Corporation Vs. Sardar Singh (2004) 7 SCC 574 but the

dismissal of the writ petition by the learned Single Judge is not on merits but

on the ground of the challenge by the appellant to the Award being barred by

time. The learned Single Judge has cited a number of judgments holding that

such belated action beyond the period prescribed for suits is not to be

entertained and that delay defeats equity. The examination by us is thus to be

confined to this aspect only.

11. The appellant seeks to explain the long delay in preferring the writ

petition by averring that the file of the present case got tagged along with

other files with the counsel for the appellant before the Supreme Court who

was conducting Sardar Singh's case and having thus remained undetected.

The said explanation however does not inspire confidence. It is not in

dispute that the respondent workman sought implementation of the Award

and the appellant participated in the said proceedings and in which

proceedings the appellant released 75% of back wages in accordance with

the Award, up to the period 31st December, 2002. It is thus not as if the

appellant was oblivious of the Award. The appellant in the proceedings for

implementation of the Award was aware of the respondent workman

enforcing the Award but still did not take any steps for over three years for

impugning the Award. The learned Single Judge has thus held the

explanation given by the appellant for delay, to be false and not bona fide.

12. We find no reason to differ.

13. Though the counsel for the appellant has referred to Lipton India Ltd.

Vs. Union of India (UOI) (1994) 6 SCC 524, State of Nagaland Vs. Lipok

AO (2005) 3 SCC 752 and to State of Haryana Vs. Chandra Mani (1996) 3

SCC 132 to urge that a lenient view in the matter of condonation of delay,

specially in the case of State ought to be taken, but the facts of the present

case are found to be gross. It cannot also be lost sight of that the dispute

concerns a workman who got the relief against the dismissal after fourteen

years and who has been seeking its implementation since then and inspite

whereof, the appellant employer maintained stoic silence for over three

years. The respondent workman in all likelihood would now have only a few

years service left before his superannuation and we do not want to aggravate

his miseries by admitting this appeal for consideration and during which

time he may reach the age of superannuation. The Industrial Adjudicator on

the basis of the evidence led before him, found that the respondent workman

after his removal was earning only about Rs.1000/- per month from odd jobs

and for which reason restricted the back wages to 75%. It cannot also be lost

sight of that the monetary part of the Award as to 75% of the back wages

already stands implemented and what remains now is only reinstatement and

the wages for the period after the Award. Even if we were to entertain the

appeal, there can be no possibility, even in the event of the appellant

succeeding in the appeal, of recovering back the monies which have already

been paid. We are therefore of the view that the principle, the delays and

negligence of the officials of the State causing prejudice to the State, cannot

also be invoked inasmuch as the monetary part of the Award has already

been implemented. Further, the appellant during the pendency of the writ

petition must have paid Section 17B Wages and would again be liable to pay

Section 17B Wages if this appeal were to be entertained. We are of the

opinion that rather than the appellant continuing to pay the Section 17B

Wages, the appellant should implement the Award and take work from the

respondent workman for his remaining period of service.

13. We therefore do not find any merit in this appeal and dismiss the

same.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE FEBRUARY 07, 2013 bs..