Jagdev vs Delhi Transport Corporation
2013 Latest Caselaw 646 Del

      *       IN THE HIGH COURT OF DELHI AT NEW DELHI

      +       LPA 82/2013

              JAGDEV
                                                                  ..... Appellant
                                Through:Mr.Anit Mittal with Mr.Anuj Kumar
                                Ranjan, Advocates.

                                versus

              DELHI TRANSPORT CORPORATION
                                                               ..... Respondent
                                Through:Ms.Avnish Ahlawat, Advocate.

              CORAM:
              HON'BLE THE CHIEF JUSTICE
              HON'BLE MR. JUSTICE V.K. JAIN

                         ORDER

      %                  11.02.2013

CM No.2402/2013

Exemption is allowed, subject to all just exceptions. Application stands disposed of.

LPA No.82/2013

1. The appellant was employed as a Conductor with the respondent/DTC. He

was charge sheeted on the allegations that he had charged fare from four

passengers without issuing tickets to them. Pursuant to an inquiry, the appellant

was removed from service. A dispute raised by him with respect to his removal

from service was referred for adjudication to Labour Court, which directed his

reinstatement but denied back wages to him on the ground that in his affidavit, the

appellant had not stated that he had remained unemployed after his removal from

service. Being aggrieved from denial of back wages, the appellant preferred a writ

petition which came to be dismissed vide impugned order dated 7 th December,

2012. The said order is under challenge by way of this appeal.

2. It is an admitted position that neither the appellant made an averment before

the Labour Court that he was not gainfully employed after his removal from

service nor did he lead any evidence to this effect. The learned counsel for the

appellant submits that even in the absence of any averment and evidence with

respect to the appellant not being gainfully employed after his removal from

service, at least part wages should have been paid to him in view of the decision of

the Supreme Court in Allahabad Jal Sansthan Vs. Daya Shankar Rai and Anr.

(2005) 5 SCC 124, where the Supreme Court, inter alia, observed and held as

under:-

"6. .... Respondent No. 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not

obtained any other employment in the interregnum. The learned counsel for the Appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the Respondent herein had been reinstated from 27.2.2001.

17. In view of the fact that the Respondent had been reinstated in service and keeping in view the fact that he had not raised any plea or adduced any evidence to the effect that he was remained unemployed throughout from 24.1.1987 to 27.2.2001, we are of the opinion that the interest of justice would be sub-served if the Respondent is directed to be paid 50% of the back wages."

3. We had occasion to examine the issue of payment of back wages on

reinstatement of a workman in LPA No.24/2013 titled `Delhi Transport

Corporation vs. Sarjeevan Kumar' decided on 21st January, 2013. After

considering various decisions of the Apex Court, including the decision relied

upon by the learned counsel for the appellant, the legal proposition in this regard

was enunciated as under:-

"i. Payment of full backwages is not automatic on Labour Court/Tribunal granting

reinstatement of workman.

ii. The same principle is equally applicable in case an order of dismissal is set

aside by the Labour Court/Tribunal on the ground of non-compliance of Section

25F of the I.D. Act.

iii. The Labour Court/Tribunal shall give reasons for determining the specified

quantum of backwages.

iv. The burden is on the workman to show that he is entitled to full backwages or

to a reasonable backwages and he is not gainfully employed during the period he

was not in service of the management.

v. Once materials are placed by workman on the above, the burden shifts on to the

Management to disprove such claim.

vi. In the event, the Labour Court/Tribunal fails to give any reason to quantify

backwages, the High Court can go into the said issue and decide on quantum."

In coming to the aforesaid conclusion, we also took into consideration

the following view taken by the Apex Court in Kendriya Vidyalaya

Sangathan & Anr. Vs. S.C. Sharma (2005) 2 SCC 363:-

"16. ...When the question of determining the entitlement of a person to backwages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had

neither pleaded nor placed any material in that regard."

4. In view of the conclusions drawn by us in Sarjeevan Kumar(supra), the

appellant is not entitled to back wages since neither he made any averment nor did

he produce any evidence claiming that he was not gainfully employed after he was

removed from service. As regards the relief granted by Supreme Court in Daya

Shankar Rai(supra), we may refer to Article 142 of the Constitution which

empowers only the Supreme Court to pass any such decree or make any such order

as is necessary for doing complete justice in any cause or matter pending before it,

and the Court, in the facts and circumstances of the case before it, felt it

appropriate to pass such an order.

For the reasons stated hereinabove, we find no merit in the appeal. The

same is, hereby, dismissed. There shall be no order as to costs.

CHIEF JUSTICE

V.K. JAIN, J FEBRUARY 11, 2013 ks