Delhi High Court
D.T.C. vs Kanwar Singh on 4 December, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:07.12.2020
20:45:02
$~8 and 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 4th December, 2020
+ W.P.(C) 1787/2001
D.T.C. ..... Petitioner
Through: Ms. Manisha Tyagi, Advocate. (M:
9811007270).
versus
KANWAR SINGH ..... Respondent
Through: Mr. D.K. Sabat, Advocate (M:
9871241800).
9 WITH
+ W.P.(C) 3114/2010
DELHI TRANSPORT CORPORATION ..... Petitioner
Through: Ms. Manisha Tyagi, Advocate.
versus
KANWAR SINGH ..... Respondent
Through: Mr. D.K. Sabat, Advocate.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through video conferencing.
2. These are two petitions filed by the Delhi Transport Corporation
(hereinafter 'DTC). The first petition challenges the impugned order dated
28th November, 2000 passed by the Industrial Tribunal, by which the
application filed by the Petitioner under Section 33(2)(b) of the Industrial
Disputes Act, 1947 was rejected and the Petitioner was said to have not
proved the allegations of mis-conduct against the Respondent. The operative
portion of the impugned order is set out below:
"16. In view of the finding of the issue no. 1, I hold
that petitioner has not been able to establish that the
respondent committed misconduct. The ingredients of
provision of section 33(2)(b) of I.D. Act have not been
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fully satisfied. Consequently, the petition is rejected."
3. In the second petition, the challenge is to the award dated 2 nd April,
2009, by which the Tribunal had directed the Respondent/Workman to be
reinstated. The operative portion of the impugned award is set out below:
"30. Relief:- in view of my findings on various issues
referred to above, workman is entitled to be reinstated
with continuity in service and other consequential
benefits but without back wages. Reference is
accordingly answered. Award is accordingly passed."
4. The brief background is that the Respondent - Mr. Kanwar Singh was
working as a Conductor in the DTC and he was on duty in a bus plying from
Delhi to Faridabad. The allegation of DTC was that he had embezzled a sum
of Rs.50/- by cutting ticket-series while serving on the said bus. Notice of
misconduct was served upon the Respondent, an Enquiry Officer was
appointed and an enquiry was conducted, report of which was submitted to
the Disciplinary Authority. Finally, vide order dated 22nd September, 1992,
the Disciplinary Authority passed an order of removal from service.
5. The DTC then moved an application under Section 33(2)(b) of the
Industrial Disputes Act, 1947, before the Industrial Tribunal, seeking
approval for the action of removal. While the said petition was pending, the
Workman also raised an industrial dispute, which was referred for
adjudication. On 28th November, 2000, the DTC's petition under Section
33(2)(b) was dismissed, which is the subject matter of challenge in W.P.(C)
1787/2001. Thereafter, the Tribunal passed the impugned award dated 2nd
April, 2009 in the Workman's petition, by which reinstatement was directed.
6. Ms. Manisha Tyagi, ld. counsel for DTC submits that in W.P.(C)
1787/2001, notice was issued on the first date of hearing, and for various
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SINGH NAYAL
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reasons, which are not being gone into, a sum of Rs. 6,88,435/- came to be
paid to the Respondent, under the presumption that the same was the amount
payable under Section 17B of the Industrial Disputes Act. This payment has
been reflected in the order dated 23rd November, 2009 and order dated 12th
April, 2010. Since there was no order for release of such amounts, an
internal enquiry was also conducted.
7. Ld. counsel further submits that without going into the question as to
whether the said amount was payable at the time or not, the admitted
position is that the Workman has received the entire amount of
Rs.6,88,435/-. She thereafter, submits that the Workman was reinstated in
terms of the award dated 2nd April, 2009, and has now superannuated w.e.f.
31st March, 2014. It is her submission that since the award dated 2nd April,
2009 did not grant any back wages to the Respondent, the amount of
Rs.6,88,435/- was not liable to be paid.
8. On the other hand, Mr. Sabat, ld. counsel appearing for the
Respondent submits that the Workman is not being paid his retirement
benefits, pension and other benefits, which are liable to be paid to him. Mr.
Sabat, does not accept the fact that he is not entitled to back wages from the
time of removal till reinstatement.
9. After going through the records of this case and the orders passed in
both these writ petitions, it is clear that the DTC's application under Section
33(2)(b) seeking permission to discharge the workman was dismissed. Thus,
the workman was taken back in service in April 2009 and has even
superannuated in March 2014. The order dated 2nd April, 2009 passed by the
Industrial Tribunal is clear to the effect that no back wages were granted to
the Workman. The said order having not been challenged by the Workman,
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SINGH NAYAL
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has attained finality. The submission of ld. counsel for the Workman cannot
accepted by this Court. The DTC has also, in effect, also accepted the order
dated 2nd April, 2009 and reinstated the Workman. In view thereof, the
challenge to the reinstatement in W.P. (C) 3114/2010 would no longer
survive.
10. However, the only point that remains is whether the Workman is
entitled to be given his retirement benefits or not. The order dated 23rd
November, 2009 reads as under:
"The award that has been challenged by the
management of the Delhi Transport Corporation
directs only for reinstatement of the respondent. This
award does not grant him back wages. It sounds
strange that the respondent has already been paid
Rs.6,88,435/- by the management of the petitioner
under Section 17-B on account of his wages up to
30.09.2004. It seems that there is serious a lapse on the
part of the management of the petitioner in making
payment to the respondent from state exchequer little
realising that the payment is being made for no work
being taken from the respondent. The petitioner in case
it was aggrieved by the impugned award then it could
have reinstated the respondent without prejudice to its
rights and contentions once an application under
Section 17-B was filed so that payment was not made
to the workman without work. The chairman of the
petitioner is, therefore, directed to conduct a
factfinding inquiry to ascertain the lapse on the part of
the concerned official and take necessary action
against him to ensure that public money is not wasted
in the manner it seems to have been done in the present
case. The Chairman is directed to submit his report to
this Court by next date of hearing.
List on 12.04.2010.
Order dasti under the signatures of the Court Master."
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SINGH NAYAL
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11. In the above order, this Court noticed that the payment of the amount
was quite a strange development as back wages were not awarded to the
Workman. Accordingly, the Court directed a fact-finding inquiry to be
conducted.
12. The enquiry was conducted by the Vigilance Department of the DTC
and report dated 7th June 2010 was also submitted. Thereafter in order dated
12th April, 2010 this Court records as under:
"Vide order dated 23rd November, 2009 the Chairman
of the petitioner DTC was directed to conduct a
factfinding inquiry. The counsel for the petitioner
states that the facts were not correctly represented
before this Court on that date. The position as it
emerges is as under:-
This writ petition has been filed against the
order of the Labour Court rejecting the application of
the petitioner DTC under Section 33(2)(b) of the Act.
Though the writ petition was accompanied with an
application for stay of the said order but no stay was
granted and the application remained pending. On 20 th
September, 2004 finding that there is no stay of the
order impugned, the petitioner DTC was directed to
deposit the entire wages due to the respondent
workman until 30th September, 2004 in this Court. CM
No.12349/2003 was filed by the respondent no.1
workman under Section 17B of the Act and which was
also pending. The petitioner DTC instead of depositing
the amount in this Court as ordered, on 17th February,
2005 handed over a cheque for Rs.6,88,435/- to the
counsel for the respondent workman and it was noted
in the order of that date that the same is towards
payment as directed under Section 17B. However there
was no order under 17B. The counsel for the petitioner
DTC today clarifies that the aforesaid payment was in
terms of the order dated 20th September, 2004 but
instead of being deposited in the court was erroneously
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SINGH NAYAL
Signing Date:07.12.2020
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handed over to the respondent workman. No further
payment has been made to the respondent workman,
thereafter. The application under Section 17B remains
pending.
Today, it is also disclosed that the respondent
workman had also raised an industrial dispute qua his
removal from service. In the said industrial dispute an
award is stated to have been now made in March, 2009
in which the workman though has been held to be
entitled to reinstatement but without any back wages. It
is stated that the petitioner DTC is filing a writ petition
challenging that award of reinstatement. The counsel
for the respondent workman states that the respondent
workman has not challenged yet the award granting
him only reinstatement and denying him any back
wages.
In view of the award aforesaid, it appears that
the petitioner is not entitled to the sum of Rs.6,88,435/-
so received by him. In the circumstances, the inquiry
by the Chairman directed by this Court on 23 rd
November, 2009 is justified. The counsel for the
petitioner DTC states that the said inquiry is
underway. The outcome thereof be stated by way of
affidavit definitely within six weeks of today.
In view of the aforesaid, it will be expedient to
hear this writ petition along with the writ petitions
challenging the award on the industrial dispute.
List on 28th July, 2010 awaiting the other writ
petitions, if any."
13. A perusal of the fact-finding report shows that the responsibility has
been assigned on the accounts department for having prepared the cheque in
the name of the Workman instead of the Registrar, DHC. The conclusions of
the report are as under:
"xxx
The officials of Accounts Department (HQ) i.e.
Dy. Manager(Pay)HQ Sh. Begram,
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SINGH NAYAL
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Accountant(Pay)HQ Shri Sant Parkash and the then
A.I.(pay) Sh. Bhim Singh, who also did not bother to
examine the relevant documents viz sanction
proposal/approval of L.F.C., relevant Court order
dated 20.09.04 already provided, while processing
preparation of cheque requested for by the D.M.
(KJD). Thus, the recklessness on the part of Accounts
Department i.e. Pay & Bill Section (HQ) in the matter
of cheque preparation for aforesaid workman cannot
be ruled out. However, except Sh. Bhim Singh the then
A.I.(Pay), the remaining employees as discussed has
already been retired from the services of the
Corporation. Hence, Sh. Bhim Singh the then A.I.(Pay)
is also responsible for not gone through sanction
approval at the time of cheque preparation.
The panel Advocate not advocating the
matter/properly had already been depanelled for his
laxity by the competent authority as per approval
dated 04.08.05.
The position of facts finding/fixing up
responsibility asked for, is emerged out on the basis of
material available, discussion of evidences and various
statement is being submitted for further course of
action at appropriate level."
14. Insofar as the retirement benefits are concerned, there is no doubt
from a reading of the above orders as also the Inquiry Report, that the
amount of Rs. 6,88,435/- has been, rightly or wrongly, paid to the Workman.
Accordingly, since the Workman has served with DTC w.e.f. 2009-10 and
superannuated in 2014, the Workman would be entitled to retirement and
other benefits, including pension. However, release of the said amount
would be subject to adjustment of the amount already paid to the Workman
of Rs. 6,88,435/-.
15. The DTC is accordingly directed to release the retirement benefits and
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SINGH NAYAL
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other statutory dues, if any, to the Workman after adjustment of Rs.
6,88,435/-, and any other sums which the Workman may have already
received. The pension etc. would be paid to the Workman in accordance
with the applicable rules. Ordered accordingly.
16. Both writ petitions are disposed of, in the above terms.
PRATHIBA M. SINGH
JUDGE
DECEMBER 4, 2020/MR/A
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