Delhi Transport Corporation vs Gulab Singh
2015 Latest Caselaw 8735 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                         Date of Decision: 24.11.2015
                                      +W.P.(C) 1521/2012
        DELHI TRANSPORT CORPORATION
                                                                                 ..... Petitioner
                              Through:       Mr J.S. Bhasin, Adv.
                              versus
        GULAB SINGH
                                                                               ..... Respondent
                     Through:  Mr M. Hussain, Adv.
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                                     JUDGMENT

: SUNITA GUPTA, J.

1. The challenge in this writ petition under Articles 226 and 227 of the Constitution is for setting aside the impugned award dated 07.04.2011 passed by POLC - VII, Karkardooma Courts, Delhi in ID No.382/98/2010.

2. The brief facts as borne out from the record is that the respondent (hereinafter referred to as 'the workman') was appointed as driver with effect from 02.09.1998 with the petitioner (hereinafter referred to as 'the corporation'). He availed excessive leaves during the period 1989 to 1993 for the period ranging 63 days in the year 1990, 81 days in the year 1991 and 129 days in the year 1992. He was cautioned in the year 1990 for remaining absent from his duties for 14 days and for which a punishment was also awarded for reduction in one increment. The workman was issued charge-sheet dated 19.03.1993 for remaining unauthorizedly absent with effect from 22.11.1992 to 03.12.1992 without any prior information and permission of the competent authority thus amounting to misconduct under para 4(ii) and (M) of the Standing Orders governing the conduct of DTC Employees. An enquiry was conducted against the workman. On conclusion of enquiry the Enquiry Officer gave findings against the workman. A show cause notice dated 05.07.1993 was issued to the workman on the basis of enquiry findings and past record of the workman. He was removed from the service of the

corporation vide letter dated 23.08.1993. After the matter failed before the Conciliation Officer, the same was referred by the Secretary (Labour) State Govt. vide order dated 10.08.1998 and thereafter, the respondent filed statement of claim before the Labour Court stating therein that he fell sick on account of typhoid with effect from 22.11.1992 as such applications for leave were sent to depot manager from time to time. He remained under treatment in government hospital. The medical certificate and fitness certificate was submitted at the time of joining duties. He was directed to be examined by the medical officer of the corporation and on receipt of the report of the medical officer for his sickness and fitness he was allowed to resume duties. The enquiry conducted against the workman was not in accordance with the principles of natural justice. The corporation did not properly consider the case of the workman and removed him from service without getting the reply of the show-cause memo and the removal is illegal and unsustainable in law. The corporation filed its written statement on 03.06.1999 claiming that the workman was removed from service of the corporation after holding a proper and valid enquiry. Reference was answered in favour of the workman on 22.01.2001 by holding that services of the workman had been terminated illegally by the corporation and he was directed to be reinstated with continuity of service and full back-wages. The management challenged the award dated 22.01.2001 by filing writ petition being W.P.(C) No. 1267/2002. Vide order dated 06.04.2005, the award was set aside and the matter was remanded back for passing fresh order in the light of the judgment passed by the Hon'ble Supreme Court in DTC v. Sardar Singh, (2004) 7 SCC 574. Thereafter, the corporation examined two witnesses. The workman also filed his affidavit. Vide order dated 30.03.2011 it was held that the corporation has been able to prove misconduct on the part of the workman for remaining absent from duties unauthorizedly from 22.11.1992 to 03.12.1992 and lack of interest in the working of the corporation. However, while deciding the quantum of punishment, vide award dated 07.04.2011 it was observed that the punishment of the removal from job is harsh and disproportionate to the misconduct proved against the workman as such he was directed to be reinstated to his job with the rider that he shall be entitled to half of the back wages for the period he has not worked with the management and he was entitled to all other consequential benefits. Feeling aggrieved, the present writ petition has been filed by the corporation challenging the

award dated 07.04.2011.

3. Learned counsel for the petitioner - corporation submits that the charge-sheet was submitted to the workman for remaining unauthorizedly absent during the period 22.11.1992 to 03.12.1992. At the time of submitting the charge-sheet itself it was made clear to the workman that his past record will also be considered. Reference was made to the above record for submitting that although the workman was appointed as a driver on 02.09.1988, however, immediately thereafter he availed excessive leaves from the period 1989 to 1993 for the period ranging 63 days in the year 1990 and 81 days in the year 1991 and 129 days leave in the year 1992 for which punishment was imposed upon him by cautioning him and reducing one increment, but he did not improve his conduct and again remained unauthorizedly absent during the year 1992. Even the Labour Court found that the unauthorized absence of the workman to join duties tantamount to misconduct yet it was held that he was entitled to reinstatement in service with 50% back-wages. Thus, the punishment of removal from service was not disproportionate to the misconduct and, therefore, the impugned order suffers from infirmity and deserves to be set aside. Reliance was placed on DTC v. Sardar Singh (supra); L&T Komatsu Ltd. v. N. Udayakumar, (2008) 1 SCC 224 and a judgment delivered by this Court in Delhi Transport Corporation v. Shri Om Dutt, [W.P.(C) No.3602/2010, decided on 14.08.2015].

4. Learned counsel for the respondent - workman, on the other hand, submits that the workman was compelled to take leave on account of his illness. Immediately after recovery at the time of joining of duties, he filed medical certificate as well as fitness certificate. He was also examined by the medical board constituted by the corporation and it was only on receipt of their report he was allowed to join duties. His leave was treated as without pay as such it was not a case of unauthorized absence. Reference was also made to the award dated 22.01.2001 passed by the learned Presiding Officer, Labour Court No.VII, Delhi whereby it was held that the workman was not guilty of any misconduct accordingly he was ordered to be reinstated with full back-wages. After the writ petition was filed by the petitioner corporation and the matter was remanded back to the Labour Court , vide award dated 07.04.2011 the punishment of

removal from job was considered to be highly disproportionate to the misconduct and as such the workman was ordered to be reinstated with 50% of the back-wages. It is further submitted that pursuant to this award the respondent - workman was reinstated in service. As such when the writ petition was filed, the counsel for the petitioner - corporation pressed the writ petition only regarding back-wages awarded to the respondent. There is no infirmity in this part of the award passed by the Labour Court which calls for any interference as such the petition is liable to be dismissed.

5. Although the writ petition was filed challenging the award dated 07.04.2011 vide which the respondent - workman was directed to be reinstated in service with 50% back- wages, however, at the stage of admission of writ petition itself, learned counsel for the petitioner - corporation confined his prayer to the grant of back-wages only. Therefore, the only question left for consideration in this writ petition is as to whether awarding of 50% back-wages to the workman is illegal or not.

6. A perusal of record reveals that the respondent - workman has specifically averred in his affidavit that after termination of his services he remained unemployed. There is no denial of this fact by the the petitioner - corporation. The order granting reinstatement to the workman is now not under challenge in this writ petition since the workman has already been reinstated. The factum of his reinstatement in the services implies that the workman is to be put in the same position in which he would have been but for the action taken by the corporation - employer. Such issue was considered at great length by the Hon'ble Supreme Court in Deepali Gundu Surwase v Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors., (2013) 10 SCC 324 wherein the Hon'ble Supreme Court referred to various earlier judgments on the issue and observed as under:-

"17. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the

latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.

18. A somewhat similar issue was considered by a three Judge Bench in Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. (supra) in the context of termination of services of 56 employees by way of retrenchment due to alleged non- availability of the raw material necessary for utilization of full installed capacity by the petitioner. The dispute raised by the employees resulted in award of reinstatement with full back wages. This Court examined the issue at length and held:

"It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. (1979) 2 SCC 80

workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have

earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them.

In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular." (emphasis supplied) After enunciating the above-noted principles, this Court took cognizance of the appellant's plea that the company is suffering loss and, therefore, the workmen should make some sacrifice and modified the award of full back wages by directing that the workmen shall be entitled to 75 % of the back wages.

19. Another three Judge Bench considered the same issue in Surendra Kumar Verma (supra):

"Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance, the Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (1980) 4 SCC 443

industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on.

In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted." (emphasis supplied)

20. The principle laid down in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra) was reiterated in P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54. That case makes an interesting reading. The respondent had worked as helper for 11 months and 18 days. The termination of his service was declared by Labour Court, Chandigarh as retrenchment and was invalidated on the ground of non-compliance of Section 25-F of the Industrial Disputes Act, 1947. As a corollary, the Labour Court held that the respondent was entitled to reinstatement with continuity of service. However, only 60% back wages were awarded. The learned Single Judge of the Punjab and Haryana High Court did not find any error apparent in the award of the Labour Court but ordered payment of full back wages. The two Judge Bench of this Court noted the guiding principle laid down in the case of Hindustan Tin Works Private Limited and observed:

"While it is true that in the event of failure in compliance with Section 25-F read with Section 25(b) of the Industrial Disputes Act, 1947 in the normal course of events the Tribunal is supposed to award the back wages in its entirety but the discretion is left with the Tribunal in the matter of grant of back wages and it is this discretion,

which in Hindustan Tin Works (P) Ltd. case this Court has stated must be exercised in a judicial and judicious manner depending upon the facts and circumstances of each case. While, however, recording the guiding principle for the grant of relief of back wages this Court in Hindustan case, itself reduced the back wages to 75%, the reason being the contextual facts and circumstances of the case under consideration.

The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect. In the event, however the finding of fact is based on any misappreciation of evidence, that would be deemed to be an error of law which can be corrected by a writ of certiorari. The law is well settled to the effect that finding of the Labour Court cannot be challenged in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate though, however, perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the decision of this Court in Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477.

Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. As regards the decision of this Court in Hindustan Tin Works (P) Ltd. be it noted that though broad guidelines, as regards payment of back wages, have been laid down by this Court but having regard to the peculiar facts of the matter, this Court directed payment of 75% back wages only.

The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. In the event, however, the High Court's interference is sought for, there exists an obligation on the part of

the High Court to record in the judgment, the reasoning before however denouncing a judgment of an inferior Tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable. There ought to be available in the judgment itself a finding about the perversity or the erroneous approach of the Labour Court and it is only upon recording therewith the High Court has the authority to interfere. Unfortunately, the High Court did not feel it expedient to record any reason far less any appreciable reason before denouncing the judgment."

7. After taking note of various other decisions rendered in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya (2002) 6 SCC 41; Indian Railway Construction Co. Ltd. v. Ajay Kumar (2003) 4 SCC 579; M.P. State Electricity Board v. Jarina Bae (2003) 6 SCC 141; Kendriya Vidyalaya Sangathan v. S.C. Sharma (2005) 2 SCC 363; General Manager, Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591; 3, U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey (2006) 1 SCC 479; The Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy, (2009) 2 SCC 681; 1, Novartis India Ltd. v. State of West Bengal and others, (2009) 3 SCC 124; Metropolitan Transport Corporation v. V. Venkatesan, (2009) 9 SCC 601; Jagbir Singh v. Haryana State Agriculture Marketing Board and another, (2009) 15 SCC 327, the proposition which can be culled out from the aforesaid decisions was summarised as under:

"i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it

has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise

that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

vii) The observation made in J.K. Synthetics Ltd. (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."

8. In view of the aforesaid judgments, coupled with the fact that the findings of the Labour Court regarding reinstatement of the workman is now no more under challenge in this writ petition and the testimony of the workman that during the entire period he remained unemployed which goes unrebutted and unchallenged coupled with the fact that the Labour Court itself has granted only 50% of the back-wages, in exercise of its writ jurisdiction under Article 226 of the Constitution, this Court is not to intervene unless the petitioner could prove that the record and material evidence adduced before the Labour Court was insufficient or inadequate or the order suffers from any perversity or there is any error of law which is required to be corrected by a writ of certiorari. The judgments relied upon by the learned counsel for the petitioner does not help the petitioner corporation particularly when the findings regarding reinstatement is not pressed in this writ petition. That being so, the impugned award does not call for any interference.

J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433

9. The writ petition is accordingly dismissed leaving the parties to bear their own costs.

The petition stands disposed of accordingly.

Trial Court record be sent back forthwith.

(SUNITA GUPTA) JUDGE NOVEMBER 24, 2015/rd