Delhi District Court
Sh. Bir Singh vs Delhi Transport Corporation on 22 October, 2018
IN THE COURT OF SHRI UMED SINGH GREWAL, PILOT
COURT/POLCXVII, KKD COURTS, ROOM NO.22: DELHI
LCA No. 108/2018
IN THE MATTER OF:
Sh. Bir Singh
S/o Sh. Sube Ram, Aged about 57 years,
R/o, Vill & P.O. Khera Khurd, Delhi110082
Mob9899403257
Batch No. 11608, ExDriver
Wazirpur Depot.
..............Workman
Versus
Delhi Transport Corporation
Through its ChairmanCumManaging Director,
I.P. Estate, New Delhi.
...........Management
DATE OF INSTITUTION : 16.08.2018
DATE ON WHICH ORDER RESERVED : 10.10.2018.
DATE ON WHICH ORDER PASSED : 22.10.2018.
O R D E R:
1. This order shall decide petition under Section 33C(2)
of the I.D. Act, 1947 for wages under Section 17B of the Act from
01.06.2017 to 31.08.2018.
2. Claimant's case is that the management had filed
WP(C) No. 8073/2011 against the impugned award dated
06.01.2011 passed by Labour Court in industrial dispute No.
LCA No. 108/2018 Page 1 of 8
325/2006 in his favour. He had moved an application U/s 17B of
the Act in writ petition which was allowed by the Hon'ble High
Court of Delhi on 20.09.2012 directing management to pay him
minimum wages or last drawn wages whichever were higher. The
management paid him those wages up to February, 2016 but
suddenly stopped paying from March, 2016 onwards on the ground
that he had attained retirement age of 55 years in that month and that
he was not fit for the post of driver as he was not examined by the
Medical Board of management. But he was never produced before
any Medical Board after attaining of 55 years in March, 2016 and
hence, he is deemed to be in service till the age of 58 years and
thereafter, till the age of 60 years. Earlier, he had filed LCA No.
59/2017 for wages from 01.03.2016 to 31.05.2017 which was
allowed The awarded amount was not set aside by the higher courts
and hence, he got that amount through attachment in execution
proceedings. His present claim is for Rs. 2, 26,000/.
3. Written statement is to the effect that an award dated
06.01.2011 was passed by Labour Court in I.D. No. 325/2006. That
award was challenged in the Hon'ble High Court of Delhi by filing
writ petition No. 8073/2011. It has been admitted that vide order
dated 20.09.2012, the management was ordered by the High Court
U/s 17B of the Act to pay claimant minimum wages or the last
LCA No. 108/2018 Page 2 of 8
drawn wages whichever were higher. The date of birth of the
claimant is 02.01.1961 and hence, he had attained the age of
superannuation i.e. the age of 55 years on 02.01.2016 and hence, he
is not entitled to any wage U/s 17B of the Act from March, 2016
onwards. It has been admitted that LCA no. 59/2017 was allowed
by this court on 12.05.2017 and that amount was paid to the
claimant through attachment. The claimant is not entitled to single
penny because he never appeared before the medical board for
fitness test in order to decide whether he can be allowed to continue
in service or not. Also, he did not produce his driving license.
4. Following issues were framed on 26.09.2018:
1. Whether the claimant is entitled to computation of
claimed amount? OPW.
2. Relief.
5. The management placed on record calculation chart
which was admitted by ARW as correct and the same is Ex.M1. The
point to be decided by the court is only the legal point and hence, no
evidence was led by both parties.
6. Ld. ARW argued that claimant was born on 02.01.1961.
He became of 55 years on 02.01.2016. Thereafter, the management
was required to get him medically examined before Medical Board,
LCA No. 108/2018 Page 3 of 8
but he was never examined and hence, he is deemed to be in service
till the age of 58 years and thereafter, up to 60 years.
On the other hand, ld. ARM argued that claimant had
attained the age of 55 years on 02.01.2016 and hence, he is not
entitled to any wage U/s 17B of the Act from 01.03.2016 onwards
because the management cannot presume that he is medically fit to
continue as driver. He referred to DRTA (Conditions of
Appointment & Services) Regulations, 1952 to show that retirement
age of driver is 55 years if he is not found medically fit to continue
after medical examination.
7. Following are the admitted facts:
I. The date of birth of the claimant is 02.01.1961.
II. He attained the age of 55 years on 02.01.2016.
III. He joined as RC driver in 1982.
IV. He came on monthly rate in 1983.
V. He was removed from job on 06.03.1992.
VI. Award of reinstatement and 25% back wages was passed by
Labour Court on 06.01.2011.
VII. The award was published on 28.04.2011.
VIII. The award became enforceable w.e.f. 27.05.2011.
IX. The management has filed writ petition No. 8073/11 against
impugned award in which the operation of the award has been
stayed.
LCA No. 108/2018 Page 4 of 8
X. Order dated 20.09.2012 was passed by the Hon'ble High
Court of Delhi in application of the claimant U/s 17B of the
Act in which the management was directed to pay him
minimum wages or the last drawn wages whichever was
higher.
8. A short question to be decided by this court is whether
the claimant is entitled to get 17B wages from management even
after attaining the age of 55 years on 02.01.2016 despite his non
examination by DTC Medical Board.
In DTC Vs. Ramesh Chand LPA No. 89, 191 & 174 of
2012 decided by the Hon'ble High Court of Delhi on 11.05.2012, the
question directly for consideration before Hon'ble High Court of
Delhi was the same as is before this court. In that case, the High
Court held that superannuation age of a driver of DTC is 58 years
with the condition that after attaining 55 years, he is required to
undergo medical examination and if found fit, he is allowed to
continue for one more year and that process is repeated till he attains
the age of 58 years. After 58 years, the discretion lies with the
management whether it would allow the driver to continue or not up
to the age of 60 years. It further held that if DTC does not conduct
medical examination of driver after attaining the age of 55 years, it
is the management who is to suffer and not the driver for the default
of management in not examining the driver for medical
LCA No. 108/2018 Page 5 of 8
examination. Following observation of the Hon'ble High Court in
that case is very relevant:
"It was, therefore, for the DTC to conduct medical
examination, in case the DTC found doubt in the medical
health of the respondent workman which could have
determined as to whether as on 4.10.2006 and thereafter on 4.10.2007 and 4.10.2008 the respondent workman was medically fit or not. This medical examination is to be done by the Medical Officer/Officer of the DTC. Therefore, it was for the DTC to call upon the workman to undergo this medical examination. If it is not done, the workman cannot be blamed therefore and there cannot be any presumption against the workman to the effect that he was not medically fit in every respect. For the nonaction of the DTC in doing so would amount to giving advantage to the workman by the DTC for its own lapse/inaction. Therefore, in these cases, we have to presume that the workmen were enjoying robust health which could have given them the benefit of raised age of superannuation of 58 years."
9. The defence of the management in the case in hand is that the management is not bound to pay claimant 17B wages from 01.03.2016 onwards as he had attained the age of 55 years on 02.01.2016 and thereafter, he did not undergo medical examination to prove his fitness. The management did not send any letter to the claimant directing him to appear before any Medical Board for medical examination. It is the fault of management for which the claimant cannot be blamed for.
LCA No. 108/2018 Page 6 of 810. It has been admitted by Ld. ARM during arguments that till the date of arguments i.e. 10.10.2018, the claimant was neither reinstated nor wages U/s 17B were paid to him. The claimant had filed case on 16.08.2018 and so, he should have claimed relief only up to 16.08.2018 but in view of clear cut admission by Ld. ARM that the claimant has neither been instated nor wages U/s 17B have been paid, he is entitled to such wages up to 31.08.2018. Moreover, the management has filed calculation chart up to that date. So, this issued is decided in favour of claimant and against management.
Issue No. 2:
11. The management has placed on record calculation chart of entitlement claimant from 01.06.2017 to 31.08.2018 which has been admitted by ARW as correct and hence, the document has been exhibited as Ex.M1. In view of observation in issue No. 1, the claimant is entitled to wages up to 31.08.2018 which, as per calculation chart, comes out to Rs. 1,87,590/. Out of that amount, mandatory deduction for CPF to the tune of Rs.22,515/ is to be made. After deduction of that amount, the total computation that comes out in favour of claimant is Rs.1,65,075/ (Rupees One Lakh Sixty Five Thousand and Seventy Five Only). The management is directed to pay him within in one month from today, failing which it shall be liable to pay interest on it @ 9% per annum from today till LCA No. 108/2018 Page 7 of 8 its realization. Parties to bear their own costs. Petition under Section 33C(2) of the Act is accordingly disposed off.
12. File be consigned to Record Room.
Dictated & announced (UMED SINGH GREWAL)
in the open Court on 22.10.2018 PILOT COURT/POLCXVII
DWARKA, DELHI
LCA No. 108/2018 Page 8 of 8