Delhi Transport Corporation Vs. the Presiding Officer Labour Courtand#8211;i and Another - Court Judgment

S. RAVINDRA BHAT, J. (Open Court)

CM.A. 17440/2010

1. The Appellant seeks restoration of appeal i.e. Letters Patent Appeal which was dismissed by an order dated 09.11.2009. Repeated attempts to serve the Respondent- workman, were unsuccessful. The Court permitted substituted service upon the Respondent by an order dated 24.08.2011. The order dated 15.12.2011 recorded satisfaction that citation with regard to service upon second Respondent through publication was filed. In these circumstance, service of notice is complete.

We have heard the counsel for the Applicant. This Court notices that the Respondent- workman had been represented till 21.07.2008, when he was permitted to withdraw the sum deposited in Court. Having regard to the over all circumstances, we are of the opinion, that in the interests of justice, the application should be allowed.

CM.A. 17440/2010 is accordingly allowed. The appeal is directed to be restored to its original number on the file.

CM. A. 17440/2010 is allowed in the above terms.

LPA 802/2003

We have heard the learned counsel for the Appellant and have also considered the records of this case. As mentioned earlier, the Respondent remained unrepresented through out. Summons for his appearance was published in the newspaper which was duly noted by order dated 15.12.2011. In these circumstances, we are satisfied that the appeal should be heard on merits. The Respondent- workman claimed that he was aggrieved by his termination from the Appellant’s service on 03.01.1984. He raised an industrial dispute some time in 1991; the appropriate government made the reference in 1992. By the award of the Labour Court dated 01.02.1999, the workman’s claim for setting aside the termination and his reinstatement was allowed. However, having regard to the circumstances, he was held entitled to 50% back wages with effect from August, 1991. The present Appellant i.e. the Delhi Transport Corporation preferred a writ petition claiming that the award was unsustainable in law and required to be interfered with. A learned Single Judge of this Court by the impugned judgment dated 23.04.2003 dismissed the writ petition on the strength of a decision of the Supreme Court drawing strength from the judgment of the Supreme Court in ‘Mohan Lal vs. Bharat Electronics Ltd.’reported in AIR 1981 SC 1253 and “State Bank of India vs. Sundara Money’(1976) 49 FJR 78. The learned Single Judge rejected the DTC’s contention that Section 2(oo)(bb) of the Industrial Disputes Act was applicable, was untenable since that provision was introduced by an amendment which came into force on 18.08.1884. The impugned judgment therefore, held that since the provision did not have retrospective effect (placing in reliance “Principal, Mayo College, Ajmer vs. Labour Court’reported in 1988 Vol.2 LLJ 351 (DB) and ‘J.Samson Jayasingh vs. Malayalam Plantations Limited’reported in 1988 Vol.73 FJR 337), non compliance with Section 25 F of the Act, invalidated the termination order.

2. DTC, the Appellant, contends that the impugned judgment as well as the award have overlooked at very material aspect i.e. that despite the termination of the workman with effect from 03.01.1984, he chose to remain silent and made a demand for reinstatement only in 1991. Counsel pointed out that the rationale for the termination of the workman, (who was admittedly appointed as a temporary driver and designated as on retainer prove basis on 19.05.1982 and later placed under probation without confirmation), was that he was involved in a fatal accident. It was urged that the workman deliberately waived his right to agitate the legality of his termination order and approached the authorities after he was acquitted in the criminal case on 04.03.1991.

3. It was urged that the award as well as the impugned judgment are further not sustainable because the law declared by the Supreme Court has consistently been that in the event the employee’s functioning is not satisfactory, the consequent termination in accordance with the terms of the contract, as long as it is non stigmatic, would not be illegal for this proposition, counsel relied upon the decisions reported as ‘Dipti Prakash Banerjee vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and ors.’(AIR 1999 SC 983) and “State of Punjab and Ors. vs. Sukhwinder Singh’(AIR 2005 SC 2960). Learned counsel further relied upon the judgment reported as “Sat Narain vs. Hayana State Co-operative Apex Bank Ltd.’1995 LLR 351 and some judgments of Single Judges of this Court.

4. In this case, the Respondent- workman was appointed as driver by an office order dated 02.02.1983 with effect from 19.11.1982. He figured at serial No.15 of that office order No.OKD/I/GO/Driver/83/332. A copy of this order was produced before the Court and exhibited as WW1/2. The said order contained the following conditions :

“They will be deemed to have been appointed from the date when they are actually present on or after the date of appointment.

Their appointment is temporary. They shall be on probation for a period of one year. The period of probation can be extended upto 2 years by this corporation if considered necessary. During the probationary period, their services shall be liable to terminate at any time without notice and without assigning any reasons therefore. They shall be considered as having completed the period of probation satisfactorily only when a notification to this effect is issued from this office.

The other conditions of their appointment and services shall be those as embedied in the D.R.T.A. (conditions of appointment and Service) Regulation, 1952 as standard upto date are may be amended there in after. As the conditions of appointment and services etc. are to be finally determined by the Delhi Transport Corporation retrospectively or other conditions shall also held good for the pay scale of the past being effared to them. They will have to undergo Medical Examination every year with particular reference to their eye-sight and if found unfit to drive the vehicles, they will have to retire prematurely. They will be required to produce age proof either by producing his school leaving certificates or an affidavit from the Magistrate or some proof within a period of one month of the issue to this memo to them.

They will have to give one months notice or surrender one month’s salary in liew thereof if they wants to guilt this Corporation.”

5. The workman’s claim for reinstatement was made after the competent criminal Court acquitted him of the charges framed against him for committing the offences punishable under Sections 279/304 A IPC. A certified copy of the judgment in that case delivered by the Ld.Metropolitan Magistrate dated 04.03.1991 has been placed on record as Ex.WW-1/5. A consideration of the same would show that the present Respondent- workman was an accused and he was charged with committing the offences on 19.10.1983 in a rash driving incident, causing serious injuries to one Kulbhushan Singh, a pedestrian and further hitting a scooterist Chhatrapati, who died later.

6. The Respondent as narrated earlier chose not to challenge the termination order at all and approached the DTC for his reinstatement, after the acquittal was recorded by the Criminal Court. The demand was not replied to by DTC; the appropriate government recorded a failure report and later referred the Industrial Dispute for adjudication.

7. It would be evident from this discussion that after having accepted the termination order in an unqualified manner, the Respondent- workman, on the basis of his acquittal, chose to raise the Industrial Dispute. Though this aspect was agitated before the Labour Court, it is not clear as to whether the Labour Court seriously went into the issue; the DTC’s pleadings on this are not satisfactory. However, before the learned Single Judge, DTC’s petition specifically claimed as follows :

“That Respondent No.2 accepted the termination order dated 3rd January, 1984. However, vide letter dated 19th July, 1991 i.e. after lapse of more than 7 years, served a demand notice on the petitioner for his reinstatement. Taking into consideration the fact that Respondent No.2 had agitated against the termination vide order dated 3rd January, 1984 after so many years, the petitioner did not give any reply. However, vide notification No.F.24(3822)/92-Lab. Dated 9th December, 1992, the Secretary (Labour), Delhi Administration referred the Industrial dispute to Labour court for adjudication. “Whether the termination of services of Shri Kartar Singh is illegal and/or unjustified and, if so, to what relief is he entitled and what directions are necessary in this respect”.”

8. This Court is of the opinion that there is some merit in the submissions made by the DTC in this regard. In the judgment of the Supreme Court in “The Nedungadi Bank Ltd. vs. K.P. Madhavankutty and Others’(2000)2 SCC 455, it was held that :

“6. Law does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after lapse of about seven years of order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference In question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated Is nowhere mentioned. Demand raised by the respondent for raising industrial dispute was ex facie bad and Incompetent.

9. The above ruling has been followed in subsequent Supreme Court’s decision such as “Ranjit Sagar Pam vs. Sham Lal’(2006)9 SCC 124 and ‘Haryana State Coop. Land Development Bank vs. Neelam’(2005)5 SCC 91 etc. The facts of this case correspond closely with that in Nedungadi Bank (supra) where too no claim seeking adjudication of an industrial dispute was made for more than six years.

10. The second aspect is, whether the DTC is correct in contending that, being a probationer, the Respondent could have been discharged without a notice, deemed mandatory under Section 25 F of the Industrial Disputes Act. Having regard to the legislative history of that provision, we did not entertain any doubt as to settled legal position i.e. prior to 18.08.1984 i.e. before the introduction of Section 2(oo)(bb), the employer was always obliged to give notice to the workman, and offer such compensation as was mandated by Section 25 F. In fact that part of the law has been affirmed by a ruling of Five Judges’ Bench in ‘Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and Ors.’ (1990)3SCC682.

11. In the light of the above discussion, the question of what should be the appropriate relief arises for consideration. We notice from the record that the reinstatement order had not been stayed when the writ petition was pending, except for a brief while. The writ petition was dismissed on 23.04.2003. During the pendency of this on 14.07.2004, subject to the deposit of the back wages, stay of the award and the impugned judgment was granted, which was continued. Eventually the amount of `3,74,460/- was deposited on 27.05.2005. By a subsequent order dated 21.07.2008, the Court permitted the Respondent- workman to withdraw the amount, which he did.

12. Having regard to the over all circumstances, we are of the opinion that even though DTC’s appeal is well founded in merit at least as far as the question of delay is concerned, yet as to whether it was justified in ignoring the provision of Section 25 F, it could not have succeeded. The ends of justice would therefore lie in balancing the equities in such a manner that none of the parties are prejudiced. Therefore, we are of the opinion that even while not holding that the reference ought not to have been made, as the claim for adjudication was made 7 years after the industrial dispute arose we do not disturbed the findings with regard to illegal termination due to non compliance of the Section 25 F of the Industrial Disputes Act. The Respondent should be allowed to retain the amount withdrawn and kept by him. Since the appeal succeeds only on the question of delay in making the reference, the same is allowed. We are strengthened by the record in the view we have taken, by virtue of the order dated 31.08.2005 where it was indicated by the parties- (which includes DTC) that an amount of `2,50,000/- would be given to the workman along with litigation expenses to end the disputes. As a consequence DTC shall not be held liable for any further amount; the workman shall be entitled to retain the amount withdrawn by him. The appeal is allowed to the above extent.