Delhi High Court
Delhi Transport Corporation vs Devender Kumar on 6 September, 2011
Author: Sanjiv Khanna
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ L.P.A. No. 598/2010
% Date of Decision: September 6, 2011
Delhi Transport Corporation ....Appellant
Through Mr. Sumeet Pushkarna, Advocate.
VERSUS
Devender Kumar .....Respondent
Through Mr. Anil Mittal, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
Devender Kumar, respondent herein, a conductor in the appellant, Delhi Transport Corporation, was removed from service on 16th April, 1987. The respondent raised an industrial dispute and succeeded vide award dated 16th January, 2006.
2. In the award, it was noticed that vide order dated 6th May, 2005, it was held that the enquiry report was unfair and the enquiry had not been conducted in accordance with law. The appellant, thereafter, was granted an opportunity to lead evidence to prove misconduct, but no evidence was led and the evidence was closed by order dated 2nd December, 2005.
LPA 598/2010 Page 1 of 3
3. The appellant unsuccessfully challenged the said award in Writ Petition (Civil) No. 15523/2006 which has been dismissed vide impugned order dated 22nd February, 2010. Learned Single Judge while dismissing the writ petition has held that the industrial adjudicator has recorded findings of fact and once the appellant did not lead evidence to prove the charge there was no justification to exercise extra ordinary writ jurisdiction under Article 226 of the Constitution and the court would not reappreciate the facts as an appellate forum.
4. It may be noticed that the Industrial Adjudicator in the award dated 16th January, 2006, had directed that the respondent would be reinstated with all consequential benefits but had restricted the back wages to 50%. Learned Single Judge has not interfered with the award of back wages.
5. In the appeal it is admitted that the respondent was reinstated in service vide letter dated 8th June, 2010. Learned counsel for the respondent has submitted that the respondent was allowed to resume duty in lieu of payment under Section 17B of the Industrial Disputes Act, 1947 w.e.f. 16th February, 2009, without prejudice to the rights and contentions of the parties and had reported for duty in July, 2009, but has not paid regular salary till 8th June, 2010. Learned counsel for the respondent has submitted that he would be satisfied and would not LPA 598/2010 Page 2 of 3 claim back wages in case regular salary as per normal scales are paid by the appellant from the date the respondent had reported for duty in July, 2009. We find this suggestion given by the learned counsel for the respondent is just, fair and should be accepted. Accordingly, the award dated 16th January, 2006, is modified to the extent that the appellant has been directed to pay 50% back wages. The said direction is set aside. It is directed that the appellant will pay back wages to the respondent from the date the respondent had reported for work after the letter dated 16th February, 2009 was issued. However, the period between 16th April, 1987 till the respondent joined the duty will not be treated as break in service and would be counted for the purpose of pension and retirement benefits.
6. The appeal is allowed to the extent indicated above. There will be no order as to costs.
SANJIV KHANNA, J.
CHIEF JUSTICE September 6, 2011 kkb LPA 598/2010 Page 3 of 3