Ms Delhi Tourist Bus Service vs Dayal Singh
2015 Latest Caselaw 8098 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                           Date of Decision: 28.10.2015
                                +       W.P.(C) 1559/2013
        MS DELHI TOURIST BUS SERVICE
                                                                          ..... Petitioner
                               Through:       Mr Shashi Shanker with Mr Vikas Chaubey,
                                              Advs.
                               versus
        DAYAL SINGH
                                                                                 ..... Respondent
                               Through:       Mr Jayant Kumar, Adv.
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                                        JUDGMENT

: SUNITA GUPTA, J.

1. The petitioner (hereinafter referred to as 'the management') lays challenge to the award dated 30.08.2011 passed by the Labour court - V, Karkardooma Courts, Delhi in ID No.3/07 vide which a compensation of Rs. 1,50,000/- was awarded in favour of the respondent (hereinafter referred to as 'the workman').

2. The workman filed a claim alleging inter alia that he was employed with the management as driver since January, 1977 on a monthly salary of Rs. 4,000/-. His services were illegally terminated with effect from 15.12.2006 in violation of Section 25 of the Industrial Disputes Act (hereinafter referred to as 'the ID Act').

3. The management contested the case of the workman by alleging that he was working as a daily wager since 1985 - 86. He was negligent in performance of his duties and was a regular absentee. He had also caused an accident while he was driving bus bearing registration number DL 1P 8237 and a case was registered which was later on compounded. The management had to pay a sum of Rs.10,000/- on behalf of the workman to the other party. In the month of June, 2006, the management found that the workman was not having a valid license as the same had expired. He was also not having the badge in accordance with the guidelines of the Hon'ble Supreme Court and had not got it renewed from 01.06.2006 onwards. The management never terminated his services

and he was asked not to drive the vehicle till he was having a valid license and badge. The workman is gainfully employed as such dismissal of the claim of the workman was prayed.

4. On 14.01.2008, following issues were framed:

(1) Whether the services of the workman were terminated illegally and / or unjustifiably by the management?

(2) Whether workman was having valid license and badge number to drive the bus at the time of his alleged termination? (3) Whether the workman left the services of the management of his own?

(4) Relief

5. Vide the impugned award, the issues were decided in favour of the workman and against the management and it was held that the services of the workman were terminated illegally and unjustifiably by the management. Although the workman alleged that he is unemployed, however, being a driver, he would not have remained unemployed for a long time, therefore, the Labour Court did not deem it fit to order reinstatement of the workman. Instead, a compensation for Rs. 1,50,000/- was awarded to the workman and the management was directed to pay the same within a period of one month from the date of publication of award failing which the management was also directed to pay interest @ 8% per annum till actual payment.

6. Feeling aggrieved, the management has filed the present writ petition.

7. The basic submission of learned counsel for the management is that the workman was not having valid license and badge and, therefore, he could not drive vehicle. He was asked to get the same before driving the vehicle. In the absence of having driving license and badge, the management could not take the risk of getting the vehicle plied from the said workman.

8. The counsel for the workman, on the other hand, referred to the conduct of the management from the inception of filing of the claim by stating that initially when the claim was filed, the management did not file written statement and was proceeded ex parte. Subsequently, the ex parte order was set aside and the written statement was filed. Again during the course of evidence, the management was proceeded ex parte which on

the application moved by the management was again aside aside and at the time of final arguments none appeared for the management to address arguments and despite opportunities granted written submissions were also not filed. Not only that, when this writ petition was filed, the operation of the impugned award was stayed subject to deposit of 75% of the awarded amount within four weeks. The amount was not deposited and the writ petition was dismissed in default due to non-appearance of the petitioner. Thereafter, the petition was restored subject to cost of Rs. 2,000/-. The same was also not deposited in time. The 75% of the awarded amount and the costs were deposited at a belated stage. Even thereafter, it was the endeavour of the management to delay the disposal of the writ petition as on one or the other pretext, adjournments were being sought. The writ petition itself has been filed after a delay of one and a half years of passing of the impugned award.

9. On merits, it was submitted by the counsel for the workman that the impugned award does not suffer from any infirmity. The management witness admitted in cross examination that the respondent was having a valid license up to the period 2009. The termination of the workman was in violation of Section 25F of the ID Act. Neither any show cause notice was given to the workman nor any opportunity of hearing or explaining the default, if any, was afforded to him. That being so, the Labour Court was justified in passing the impugned award as such the petition is liable to dismissed.

10. The basic controversy involved in this case is whether the workman was having valid license and badge as according to the management since the workman was not having valid license and badge therefore he was asked not to drive the vehicle till he possesses the same.

11. As regards valid license is concerned the Labour Court came to the conclusion that the workman had discharged its initial burden to show that at the time of termination, he was having valid license. He had proved documents Ex.WW1/7. The license was issued on 20.01.1978 for Heavy Transport Vehicle which was renewed and on renewed license, the date of issue was 06.11.2006 which was valid up to 05.11.2009. As such on the date of termination i.e. 15.12.2006, the workman was having a valid license for driving heavy vehicle. The management had alleged that the workman was not having a valid during the period 2003 to 2006, however, this suggestion was denied by the

workman and no evidence to the contrary was led by the management. As such, regarding the issue of workman having valid license, there is no infirmity in the order.

12. However, as regards 'badge' is concerned, no specific finding has been given by the learned Labour Court in this regard. It was the case of the management that as per guidelines of Supreme Court, the driver was required to undergo certain tests for having valid badge which the workman did not undergo. The workman admitted in his cross examination that he was having a badge which was issued in the year 1978. He admitted that he did not undergo any test regarding the badge. Under the circumstances, the fact that the driver was having a valid badge was not proved but no finding in this regard was given by the Labour Court.

13. However, this fact itself is not sufficient to interfere in the findings of the Labour Court as findings on the other issues were also given in favour of the workman. The onus of proving issue no.3 as to whether the workman left the services of the management of his own was on the management. The management had taken the plea that the workman himself had stopped coming to the office of the management as he was not having a valid license and proper badge. However, no show cause notice was given to the workman with regard to his absence from service nor any charge-sheet was given to him nor any enquiry was conducted. The learned Labour Court relied upon D.K. Yadav v M/s J.M.A. Industries Ltd., (1993) 3 SCC 259 wherein it was held that striking off the name of the workman from the rolls on the ground of absence from duty amounts to retrenchment and in the interest of justice and fairness, a reasonable opportunity must be given to an employee to enable him to put forth his case. The management, in the instant case, did not produce any evidence to show that the workman did not join duty since June, 2006 onwards as such the management failed to prove that the workman left the services of his own.

14. As regards the issue no.1 as to whether the services of the workman were illegally terminated by the management, the claim of the workman was that he was working with the management as driver since 1977 and his last drawn salary was Rs.4,000/- per month. According to him, his services were illegally terminated on 15.12.2006. In order to substantiate this fact, the workman proved certain documents including a certificate issued by Shri S.P. Kakkar, a partner of the petitioner wherein it was certified that the

workman was working as a driver with the management for the last 20 years and that he was a good driver having license bearing number C030722000207265 and badge number 51830. Although an objection was taken that there was an overwriting on the words 'twenty' but no evidence was led by the management to prove that the workman was not working with the management for the last 20 years and therefore it was held that despite the fact that the workman was having a valid license, his services were illegally terminated by the management. The aforesaid finding does not suffer from any infirmity.

15. Moreover, although the award was passed on 30.08.2011, the instant petition has been filed only on 07.03.2013 i.e. after a lapse of one and half years of passing the impugned award. In Ajay Kumar & Ors. v Killburn Office Automation Ltd., MANU/DE/4753/2009 the delay in filing the writ petition after expiry of more than two years from the date of award was considered to be fatal and the writ petition was dismissed on account of delay and laches.

16. Last but not the least, while exercising writ jurisdiction under Article 226 of the Constitution of India, this Court is not sitting in appeal over the award given by the Labour Court. The scope of interference is very limited. The Court will interfere only if the findings are perverse or is in violation of principles of natural justice or there is any error apparent on the face of record. The instant case does not fall within the four corners of any of the aforesaid criteria which warrants interference.

17. The learned Labour Court while granting relief has not even directed reinstatement keeping in view the fact that the workman being a driver would not have remained unemployed for a long time therefore compensation was awarded which cannot be termed as excessive.

18. In view of aforesaid discussion, the writ petition is dismissed.

There shall be no order as to costs.

Trial Court record be sent back forthwith.

(SUNITA GUPTA) JUDGE OCTOBER 28 2015/rd