Delhi Transport Corporation Vs. Ran Singh - Court Judgment

SooperKanoon Citationsooperkanoon.com/948406
CourtDelhi High Court
Decided OnApr-10-2012
Case NumberLPA 900 OF 2011
Judge THE HONOURABLE ACTING CHIEF JUSTICE MR. SIKRI & RAJIV SAHAI ENDLAW
AppellantDelhi Transport Corporation
RespondentRan Singh
Excerpt:
drta (conditions of appointment and service) regulations, 1952 - clause 14(10)(b) - industrial disputes act, 1947 - section 17b - challenging the order passed by the single judge dismissing the writ petition, present intra-court appeal is filed - appellant does not question the direction of reinstatement - issue is about the payment of 50% back wages - respondent/workman challenged this action of appellant by raising the industrial dispute was referred to the labour court and ultimately it resulted in award deemed resignation was held to be invalid on the ground that if respondent workman was unauthorised absent from duty, he could have been proceeded against departmental provision could not have been invoked - workman was directed to be reinstated in service with 50% back wages -order of reinstatement with 50% back wages is thus upheld - during the pendency of this writ petition, the respondent workman moved an application under the industrial dispute act for payment of back wages - respondent workman was reinstated - payment of wages at the rate he would be entitled to had he been working on regular basis -judgment a.k. sikri, acj. (oral) 1. on the allegation that the respondent workman unauthorizedly absented himself from duty with effect from 14.08.1986, the appellant treated the respondent workman as deemed to have resigned from service vide order dated 24.03.1987 by invoking the provisions of clause 14(10)(b) of the drta (conditions of appointment and service) regulations, 1952. the respondent workman challenged this action of the appellant by raising the industrial dispute which was referred to the labour court and ultimately it resulted in award dated 16.07.2003 vide which the deemed resignation was held to be invalid on the ground that if the respondent workman was unauthorizedly absent from duty, he could have been proceeded against departmentally and provisions of clause 14(10)(b) of the drta regulations could not have been invoked. to arrive at the said conclusion, the labour court relied upon the judgment of the supreme court in d.k. yadav vs. j.m.a. industries ltd. (1993) 3 scc 259. the respondent workman was directed to be reinstated in service with 50% back wages.  2. the appellant challenged that order by filing the writ petition no.5494/2005 which has been dismissed vide impugned order dated 30.08.2011. the order of reinstatement with 50% back wages is thus upheld. we may also record at this stage that during the pendency of this writ petition, the respondent workman has moved an application under section 17b of the industrial disputes act, 1947 for payment of back wages from the date of the award and order dated 07.07.2009 was passed in this application on the basis of statement made by the appellant that appellant would take back the respondent workman on duty. pursuant to that order, the respondent workman was reinstated with effect from 10.07.2009. the respondent workman has since been working with the appellant dtc. the respondent workman had also moved an application seeking direction for payment of wages at the rate he would be entitled to had he been working on regular basis. this application was also disposed of along with the writ petition and direction is given that the respondent workman should be paid the wages in accordance with the decision in dtc vs. phool singh 2010 (iv) ad (delhi) 223. it was also directed that arrears of the difference in wages would be paid to the respondent workman within a period of four weeks. 3. challenging the order passed by the learned single judge dismissing the writ petition, present intra-court appeal is filed. in this appeal, the appellant does not question the direction of reinstatement. the only issue raised is about the payment of 50% back wages. the learned counsel for the appellant has drawn our attention to the order dated 25.04.2006 passed by the supreme court in batch of appeals titled dtc vs. prakash chand civil appeal nos.7110-7111/2004 preferred by the dtc itself. those were also the cases where the services were terminated similarly invoking the provisions of clause 14(10)(b) of the drta regulations. the supreme court passed the order directing reinstatement but without any claim for back wages. the operative portion of that order reads as under: “heard learned counsel for the parties. considering the peculiar nature of the controversy and without going into the questions of law raised, we feel that on the special circumstances involved interest of justice would be best served if the following order is passed: (1) concerned respondents shall be reinstated without their laying any claim for back wages. the respondents in c.a. nos.7135-7136/2004, 7112-7113/2004, 7114-7115/2004, 7120-7121/2004, 7122-7123/2004, 7131-7132/2004 and 693/2005 are willing to join back without laying any claim for back wages. (2) it is submitted by learned counsel for the concerned respondents that the period covered may be taken into account for the purpose of continuity so that certain retiral/pensionary benefits can be availed by them. we find the suggestion to be fair and reasonable. the arrangement is also accepted by learned counsel for the appellant – corporation.” mrs. avnish ahlawat, learned counsel for the appellant dtc further submits that this order has been followed by this court in certain cases thereby denying back wages. 4. after hearing the counsels for the parties, we are of the opinion that the present case which is identically situated requires the same treatment. it is a matter of record that the respondent workman had remained absent from 14.08.1986 to 24.03.1987 when provisions of clause 14(10)(b) of the drta regulations were invoked. before invoking the aforesaid provision, notice was sent to the respondent workman asking him to join the duties but he failed to do so. though the respondent workman is reinstated in service but only on technical ground that such provision should not have been invoked. having regard to this fact and going by the spirit of orders passed by the supreme court in dtc vs. prakash chand, we are of the opinion that in the instant case as well, the respondent workman is not entitled to any back wages. the order of the learned single judge as well as the impugned award passed by the labour court is modified to this extent. 5. some amount towards back wages was recovered by the respondent workman in the execution proceedings in the year 2002, before the writ petition was filed. that amount shall not be recovered from the respondent workman by the appellant. 6. it is further made clear that the respondent workman shall be given the regular wages with effect from 10.07.2009 since when he joined back the services. as per the award, the intervening period has to be counted for the purpose of retiral / pensionary benefits. we make it clear that since continuity in service has been granted and we have only denied the arrears of back wages, the pay of the respondent workman w.e.f. joining on 10.07.2009 is to be as if there was no termination i.e. by granting him the benefits of increments / pay revision etc. the pay of the respondent workman shall be so fixed and arrears of salary with effect from 10.07.2009 shall be paid accordingly within a period of four weeks from today. the appeal is allowed to the aforesaid extent
Judgment:

JUDGMENT

A.K. SIKRI, ACJ.

(ORAL)

1. On the allegation that the respondent workman unauthorizedly absented himself from duty with effect from 14.08.1986, the appellant treated the respondent workman as deemed to have resigned from service vide order dated 24.03.1987 by invoking the provisions of Clause 14(10)(b) of the DRTA (Conditions of Appointment and Service) Regulations, 1952. The respondent workman challenged this action of the appellant by raising the industrial dispute which was referred to the Labour Court and ultimately it resulted in award dated 16.07.2003 vide which the deemed resignation was held to be invalid on the ground that if the respondent workman was unauthorizedly absent from duty, he could have been proceeded against departmentally and provisions of Clause 14(10)(b) of the DRTA Regulations could not have been invoked. To arrive at the said conclusion, the Labour Court relied upon the judgment of the Supreme Court in D.K. Yadav Vs. J.M.A. Industries Ltd. (1993) 3 SCC 259. The respondent workman was directed to be reinstated in service with 50% back wages.

 2. The appellant challenged that order by filing the writ petition No.5494/2005 which has been dismissed vide impugned order dated 30.08.2011. The order of reinstatement with 50% back wages is thus upheld. We may also record at this stage that during the pendency of this writ petition, the respondent workman has moved an application under Section 17B of the Industrial Disputes Act, 1947 for payment of back wages from the date of the award and order dated 07.07.2009 was passed in this application on the basis of statement made by the appellant that appellant would take back the respondent workman on duty. Pursuant to that order, the respondent workman was reinstated with effect from 10.07.2009. The respondent workman has since been working with the appellant DTC. The respondent workman had also moved an application seeking direction for payment of wages at the rate he would be entitled to had he been working on regular basis. This application was also disposed of along with the writ petition and direction is given that the respondent workman should be paid the wages in accordance with the decision in DTC Vs. Phool Singh 2010 (IV) AD (Delhi) 223. It was also directed that arrears of the difference in wages would be paid to the respondent workman within a period of four weeks.

3. Challenging the order passed by the learned Single Judge dismissing the writ petition, present intra-court appeal is filed. In this appeal, the appellant does not question the direction of reinstatement. The only issue raised is about the payment of 50% back wages. The learned counsel for the appellant has drawn our attention to the order dated 25.04.2006 passed by the Supreme Court in batch of appeals titled DTC Vs. Prakash Chand Civil Appeal Nos.7110-7111/2004 preferred by the DTC itself. Those were also the cases where the services were terminated similarly invoking the provisions of Clause 14(10)(b) of the DRTA Regulations. The Supreme Court passed the order directing reinstatement but without any claim for back wages. The operative portion of that order reads as under:

“Heard learned counsel for the parties.

Considering the peculiar nature of the controversy and without going into the questions of law raised, we feel that on the special circumstances involved interest of justice would be best served if the following order is passed:

(1) Concerned respondents shall be reinstated without their laying any claim for back wages. The respondents in C.A. Nos.7135-7136/2004, 7112-7113/2004, 7114-7115/2004, 7120-7121/2004, 7122-7123/2004, 7131-7132/2004 and 693/2005 are willing to join back without laying any claim for back wages.

(2) It is submitted by learned counsel for the concerned respondents that the period covered may be taken into account for the purpose of continuity so that certain retiral/pensionary benefits can be availed by them. We find the suggestion to be fair and reasonable. The arrangement is also accepted by learned counsel for the appellant – Corporation.”

Mrs. Avnish Ahlawat, learned counsel for the appellant DTC further submits that this order has been followed by this Court in certain cases thereby denying back wages.

4. After hearing the counsels for the parties, we are of the opinion that the present case which is identically situated requires the same treatment. It is a matter of record that the respondent workman had remained absent from 14.08.1986 to 24.03.1987 when provisions of Clause 14(10)(b) of the DRTA Regulations were invoked. Before invoking the aforesaid provision, notice was sent to the respondent workman asking him to join the duties but he failed to do so. Though the respondent workman is reinstated in service but only on technical ground that such provision should not have been invoked. Having regard to this fact and going by the spirit of orders passed by the Supreme Court in DTC Vs. Prakash Chand, we are of the opinion that in the instant case as well, the respondent workman is not entitled to any back wages. The order of the learned Single Judge as well as the impugned award passed by the Labour Court is modified to this extent.

5. Some amount towards back wages was recovered by the respondent workman in the execution proceedings in the year 2002, before the writ petition was filed. That amount shall not be recovered from the respondent workman by the appellant.

6. It is further made clear that the respondent workman shall be given the regular wages with effect from 10.07.2009 since when he joined back the services. As per the award, the intervening period has to be counted for the purpose of retiral / pensionary benefits. We make it clear that since continuity in service has been granted and we have only denied the arrears of back wages, the pay of the respondent workman w.e.f. joining on 10.07.2009 is to be as if there was no termination i.e. by granting him the benefits of increments / pay revision etc. The pay of the respondent workman shall be so fixed and arrears of salary with effect from 10.07.2009 shall be paid accordingly within a period of four weeks from today.

The appeal is allowed to the aforesaid extent