Dtc vs Delhi Administration Etc.
2016 Latest Caselaw 304 Del

$~3.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 280/1991
      DTC                                          ..... Petitioner
                       Through: Mr. Manish Garg, Advocate with
                       Mr. Akshay Bhardwaj, Advocate

                       versus

      DELHI ADMINISTRATION ETC.                  ..... Respondents
                    Through: Mr. S.C. Singhal, Advocate with
                    Mr. M.K. Dhingra and Mr. Pradeep Verma,
                    Advocates for R-3.

      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI

                       ORDER

% 15.01.2016

REVIEW PET. 226/2008 (by the petitioner/DTC against the judgment dated 25.04.2007) and CM APPL. 138959/2009 (for condonation of delay)

1. The present petition plays out a modern day version of the Biblical

story of "David and Goliath", where the petitioner/DTC, a Public Sector

Undertaking has played to the hilt, the role of the giant, Goliath, a nine

foot soldier from Gath, who had vainly boasted that he could beat any

individual soldier in the Israelite army and the respondent No.3, who was

employed as a Conductor with the petitioner/DTC, is the contextual

David, the shepherd boy, who has been valiantly facing the wrath of a

leviathan in the shape of the petitioner/DTC, for the past over four

decades, on an allegation that he had misappropriated 10 paise from a

passenger without issuing her a ticket for an actual fare of 15 paise.

2. The Review Petitionist/DTC has filed the present Review Petition

seeking review of the judgment dated 25.04.2007, dismissing the writ

petition directed against the Award dated 26.02.1990, passed by the

Presiding Officer, Labour Court. Accompanying the present petition is an

application under Section 5 of the Limitation Act, praying inter alia for

condonation of delay of 350 days in filing the Review Petition.

3. A glance at the facts of the case is necessary. The case dates back

to August, 1973 when the respondent No.3/Workman was in the

employment of the petitioner/Corporation as a Conductor and was

challaned by the Checking Staff of the Corporation on the allegation that

he had collected 10 paise from a lady passenger against the actual fare

of 15 paise and that he had pocketed the said amount by not issuing a

ticket to her. A domestic enquiry was conducted against the respondent

No.3 and he was dismissed from service on 15.07.1976. Aggrieved by

the dismissal order, the respondent No.3 had raised an industrial dispute

and the matter was referred to the Labour Court vide reference dated

18.07.1982. The Labour Court had passed the impugned Award dated

26.02.1990, holding inter alia that the enquiry conducted by the

petitioner/DTC was illegal and unjustified and the respondent

No.3/Workman was directed to be reinstated with full back wages.

4. Another offshoot of the litigation between the petitioner/DTC and

the respondent No.3 arose out of an application filed by DTC under

Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short „the Act')

for seeking approval of the respondent No.3‟s dismissal. It is an

undisputed position that vide order dated 06.07.1982, the Industrial

Tribunal had allowed the said application. Aggrieved by the approval

granted by the Industrial Tribunal, the respondent No.3 had filed a writ

petition in the High Court, registered as W.P.(C) 3967/1982 that was

dismissed vide order dated 24.02.1983. The respondent No.3 did not

challenge the said order that resultantly attained finality.

5. At the time of filing the present petition in the year 1991, the

petitioner/Corporation had raised several grounds to lay a challenge to

the impugned Award dated 26.02.1990 passed by the Labour Court.

However, in the course of arguments addressed before this Court,

learned counsel for the petitioner/DTC had elected to confine the relief in

the petition to the legal issue as to whether the approval accorded to the

act of the petitioner/DTC in the proceedings arising under Section

33(2)(b) of the Act, would act as res judicata in a subsequent reference

of the same dispute to another Tribunal/Labour Court for adjudication

under Section 10 of the Act.

6. The aforesaid position is borne out from a perusal of para 9 of the

judgment dated 25.04.2007, wherein it was noted that the respondent

No.3 had filed an application under Section 17B of the Act for payment of

the amounts due and payable to him upto the date of making of the

Award and for future salary, which was allowed vide order dated

19.11.1991. Aggrieved by the said interim order, the petitioner/DTC had

filed LPA No.3/1992 that was disposed of by the Division Bench by

passing a consent order dated 11.02.1992, whereunder the

reinstatement of the respondent No.3/Workman was stayed subject to

payment of the amount equal to the wages last drawn by him, in terms

of Section 17(B) of the Act and the entire back wages were directed to be

released to him subject to his furnishing security for half of the said

amount. Pursuant to the said order, the petitioner/DTC had paid a sum of

Rs.2,09,744/- to the respondent No.3 towards back wages for the period

from July, 1976 to July, 1990 and thereafter, it had continued paying

salaries to him on a month to month basis, till he had attained the age of

superannuation on 30.9.2002, which was during the pendency of the

petition.

7. It was in this background that at the time of addressing arguments,

learned counsel for the petitioner/DTC did not press the issue raised with

regard to back wages and sought to confine his arguments to the fall out

of the order passed under Section 33(2)(b) of the Act, pending

adjudication under Section 10 of the Act. In view of the statement made

by the previous counsel appearing on behalf of the petitioner/DTC,

arguments in the petition were confined to the question of res judicata.

Vide judgment dated 25.04.2007, it was held that the scope of the

proceedings under Section 33(2)(b) of the Act were different from the

scope of the proceedings under Section 10 of the Act and the findings

returned under Section 33(2)(b) of the Act could not act as bar to a

reference under Section 10 of the Act, as the latter would have to be

decided on its own merits. With these findings, the writ petition filed by

the petitioner/DTC was dismissed.

8. Aggrieved by the aforesaid decision, the petitioner/DTC had filed an

intra-court appeal, registered as LPA No.89/2007, alongwith an

application for condonation of delay of 149 days. A perusal of the order

dated 28.02.2008 passed by the Division Bench in the said appeal

reveals that after addressing arguments for some time, learned counsel

for the appellant/DTC had sought permission to withdraw the said appeal

with liberty to file a review application, which was so granted and the

appeal was dismissed as withdrawn.

9. The present Review Petition came to be filed by the petitioner/DTC

on 28.03.2008. It is accompanied by an application for condonation of

delay (CM APPL.138959/2009). The explanation offered for condonation

of delay in filing the Review Petition beyond the prescribed period of 30

days from the date of passing the judgment dated 25.04.2007 is that

though the certified copy of the judgment was applied for on the same

date and it was lying ready at the filing counter on 10.05.2007, the same

was collected by the counsel for the petitioner/DTC on 15.06.2007, i.e.,

during the summer vacations and the Department had taken some time

in examining the financial implications of the said judgment and the

viability of filing an appeal, which ultimately came to be filed on

26.11.2007 and was withdrawn on 28.02.2008.

10. Having regard to the approach ordinarily adopted by the courts in

matters where the State/Public Authority is a litigant, and a strict

standard for assessing the delay is not adopted as it may lead to grave

miscarriage of justice and further, keeping in mind that the approach of

the Court in such cases should be pragmatic and not pedantic , this Court

does not propose to non-suit the Review Petitionist/DTC on the ground of

delay. Resultantly, CM APPL. 138959/2009 is allowed and the delay of

350 days in filing the Review Petition is condoned.

11. Coming to the pleas taken in the Review Petition, the only ground

urged by learned counsel for the petitioner is that while passing the

judgment dated 25.04.2007, this Court did not adjudicate upon all the

issues raised by the petitioner/DTC and instead, it had chosen to confine

itself to Ground (B) raised in the writ petition, which refers to the

doctrine of res judicata and its application in the context of the order

dated 06.07.1982, passed by the Industrial Tribunal and the plea taken

by the petitioner/DTC that it ought to have been taken as conclusive by

the Labour Court. Mr. Manish Garg, learned counsel for the

petitioner/DTC submits that the other grievances raised in the petition

had remained unaddressed including the grievance with regard to grant

of full/back/no back wages to the respondent no.3, which ought to have

been adjudicated upon on merits.

12. Mr. S.C. Singhal, learned counsel for the respondent No.3

vehemently opposes the Review Petition and submits that in the course

of arguments addressed in the petition, the petitioner/DTC‟s previous

counsel, Mr.Alok Shankar had himself elected to confine the scope of the

said petition to Ground (B) and in view of the said undisputed position, it

is not permissible for the Review Petitionist to seek permission to argue

the other grounds taken in the writ petition. He states that in any case,

the review application is not maintainable as learned counsel for the

petitioner has not been able to point out any error apparent on the face

of the record or any material irregularity in the judgment dated

25.04.2007, that requires to be reviewed by this Court.

13. Learned counsel for the respondent No.3 submits that once the

back wages of the workman were released by the petitioner/DTC, then

the question of addressing arguments on his entitlement to back wages

could not be a subject matter of adjudication by the Court and similarly,

the monthly salary was also being paid by the petitioner/DTC to the

respondent No.3, who had volunteered to re-join the services but the

DTC had declined to assign him any duty. He clarifies that had the

respondent No.3 re-joined the services of the petitioner/DTC, he would

have superannuated in due course on 30.09.2002.

14. The Court is inclined to concur with the submissions made by the

counsel for the respondent No.3 that the petitioner/DTC‟s counsel having

elected to confine the relief in the writ petition to the effect of an order

passed under Section 33(2)(b) of the Act and the application of the

principles of res judicata for the purposes of adjudicating the dispute

raised under Section 10 of the Act, the petitioner cannot be permitted to

urge at this belated stage that this Court ought to have adjudicated upon

all the other pleas taken in the writ petition. In any event, such an

argument does not hold good when it comes to the scope of a Review

Petition, which is fairly limited and is confined to pointing out any

mistake/material error on the face of the record or in case of there

existing any such irregularity, neither of which has been pointed out by

learned counsel for the petitioner.

15. It is trite that the scope of review jurisdiction is very limited. The

power of review may be exercised when there is some mistake or error

apparent on the face of the record or in case of discovery of new and

important matters of evidence which, even after exercise of due

diligence, was not within the knowledge of the person seeking review at

the time when the initial order was made. But on a ground that the

decision was erroneous on merits or that all the pleas taken by the

petitioner were not considered, exercise of the power of review is

impermissible. Power of review is not an appellate power nor is it a power

to substitute a view taken in a previous order or add to it. The possibility

of two views on the subject is also not a ground for review. Reference in

this regard may be made to the following judgments:

      (i)      Thungabhadra Industries Ltd. v. Govt. of A.P.
               [1964] 5 SCR 174

      (ii)     Aribam Tuleshwar Sharma v. Aibam Pishak Sharma
               (1979) 4SCC 389.

      (iii)    Meera Bhanja v. Nirmala Kumari Choudhury
               AIR 1995 SC 455.

      (iv)     Persion Devi and Ors. v. Sumitri Devi
               (1997) 8SCC 715.

      (v)      Lily Thomas v. Union of India
               AIR 2000 SC 1650.

      (vi)     Rajendra Kumar v. Rambai
               AIR 2003 SC 2095.

      (vii)    Board of Control for Cricket in India and Anr.   v. Netaji
               Cricket Club and Ors.
               AIR 2005 SC 592.

(viii) Inderchand Jain (D) through L.Rs. v. Motilal (D) through L.Rs.

(2009) 14 SCC 663.

16. In view of the above facts and circumstances, the Review Petition is

dismissed as not maintainable. Before drawing the curtains on this

application, and hopefully, on this litigation, this Court is compelled to

take note the manner in which the petitioner/DTC has conducted itself in

the present case, the seeds whereof were sown over four decades ago, in

the year 1973, when a labour dispute had taken place between the

petitioner/DTC and the respondent No.3/workman over his allegedly

pocketing 10 paise without issuing a ticket to a passenger travelling in a

DTC Bus.

17. The petitioner/DTC had lost the case before the Labour Court in the

year 1990 and in terms of the Award, it ought to have reinstated the

respondent No.3 with full back wages. The petitioner had then filed a writ

petition in the year 1991, challenging the said Award. The said petition

had remained pending till the year 2007. Even if the respondent No.3

would have been reinstated by the petitioner/DTC in this duration, he

would have superannuated during the pendency of the writ petition, on

30.09.2002. Aggrieved by the judgment dated 25.04.2007, the

petitioner/DTC had filed an appeal, which was permitted to be withdrawn

vide order dated 28.02.2008 passed in LPA No.89/2007.

18. In March, 2008, the petitioner/DTC had filed the present review

petition which was listed for hearing on 04.07.2008. On account of the

repeated requests for adjournment made on behalf of the petitioner/DTC,

the review application could not be taken up for hearing till 29.07.2009,

on which date, notice was finally issued to the respondent No.3. After the

pleadings were completed in the Review Petition and the condonation of

delay application, on 07.05.2010, in the course of arguments, learned

counsel for the petitioner/DTC had sought an adjournment to file a brief

synopsis of the relevant dates and events, which was filed on

05.08.2010. However, arguments were not addressed till 22.08.2014,

on account of change of panel lawyers of the petitioner/DTC and

repeated adjournments sought by both sides.

19. On 22.08.2014, taking note of the list of dates and events filed by

the counsel for the petitioner/DTC, it was deemed appropriate to direct

the DTC to file an affidavit indicating inter alia the quantum of dues

payable to the respondent No.3 on account of salary, gratuity, pension,

pay fixation etc., the amounts disbursed so far and the reasons for non-

release of the balance amount.

20. The said affidavit of compliance filed by the present counsel for the

petitioner/DTC on 29.10.2014, reveals that as on date, DTC has withheld

an amount of Rs.1,28,293/- payable to the respondent No.3 towards

gratuity and a sum of Rs.1,37,167/- towards CPF (Employees

Contribution), totalling to a sum of Rs.2,65,460/- and it has incurred an

expenditure of Rs.47,795/- on the present litigation. The explanation

offered for non-release of the amounts payable to the respondent No.3

under the judgment is that the case has remained sub-judice before this

Court and had the payment been made to the respondent No.3, it would

not have been possible to recover the same from him.

21. Having regard to the fact that no interim order was operating in

favour of the petitioner/DTC after the judgment was pronounced on

25.04.2007, there is no justification whatsoever for it to have withheld

the gratuity and Provident Fund dues payable to the respondent No.3,

which amounts are even otherwise, protected under the Statute and

cannot be attached under any legal proceedings. This makes the position

worse for the petitioner/DTC. Here is a case, where the respondent

No.3/Workman has been fighting a prolonged battle with the

petitioner/DTC spanning over 40 years and after having won the case

before the Labour Court and the High Court, he has not been able to

reap the fruits. It is ironical that the respondent no. 3 has by now

reached the ripe old age 73 years in a litigation that had commenced in

the year 1973, when he was all of 31 years.

22. Had the petitioner/DTC reinstated the respondent No.3 in terms of

the Award dated 26.02.1990, passed by the Labour Court, he would have

in any case superannuated on 30.09.2002, on which date, at least his

gratuity and Provident Fund would have been released. However, the

respondent No.3 has been made to run from pillar to post for release of

his rightful dues, all because a highly belated review petition came to be

filed by the petitioner/DTC after taking its chances in appeal, particularly

when it had never approached this court or the Division Bench asking for

stay of the operation of the judgment dated 25.4.2007.

23. In the aforesaid facts and circumstances, invoking the inherent

powers vested in the Court under Article 226 of the Constitution of India,

the petitioner/DTC is directed to release the gratuity and Provident Fund

payable to the respondent No.3 within four weeks. The said amount shall

carry interest @8.5 % per annum from the date the same became due

and payable to the respondent No.3/workman, if paid within four weeks.

However, if the amount is not released within the period stipulated

above, then the interest payable shall stand enhanced from 8.5% to

12.5%. The Review Petition is dismissed with costs of Rs.30,000/-

imposed on the petitioner/DTC to be paid to the respondent No.3, within

four weeks.

HIMA KOHLI, J JANUARY 15, 2016 rkb/ap