Central Administrative Tribunal - Delhi
Mahabir Prasad vs Delhi Transport Corporation on 23 March, 2012
Central Administrative Tribunal Principal Bench OA No.3579/2011 New Delhi this the 23rd day of March, 2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Mahabir Prasad, S/o Sh. Tara Chand, R/o VIll. & P.O. Khera Khurd, Delhi-110082. ..Applicant (By Advocate Shri Amit Kumar) Versus 1. Delhi Transport Corporation, Through its Chairman-cum-Managing Director, I.P. Estate, New Delhi. 2. The Depot Manager, Delhi Transport Corporation, Rohini-I Depot ..Respondents (By Advocate: Shri Gaurav Bisht for Ms. Arati Mahajan Shedha) O R D E R (ORAL) Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
a) quash the letter dated 12.05.2011 issued by the respondent holding the same to be illegal, invalid, improper, arbitrary and discriminatory;
b) hold that the applicant is entitled to be reinstated in service with continuity of service for the intervening period and all other consequential benefits. Cost of the proceedings may be awarded to the applicant.
2. At the outset, it may be stated that the applicant had earlier raised an industrial dispute regarding his illegal termination by the Management and the Labour Court vide its Award dated 02.08.2010 has directed the Management to reinstate the workman with continuity of service and without back wages. At this stage, it will be useful to quote the operative portion of the Award dated 02.08.2010 passed by the Labour Court, KKD, Delhi in ID No.223/08/96, which thus reads:
Consequently, the management is directed to reinstate the workman with continuity of service and without back wages. Reference is answered accordingly. Let requisite number of copies of this award be sent to the appropriate government for publication.
3. Pursuant to the aforesaid award of the Labour Court, respondents have passed the impugned order dated 12.05.2011 (Annexure A-1) thereby reinstating the applicant with immediate effect without back wages with a further stipulation that the applicant shall not be entitled for benefits of notional pay fixation, promotion, ACP, increments and his services are not to be counted for the purpose of pensionary benefits for the intervening period. His pay will be fixed as per last pay drawn when his services were terminated. It is on the basis of these facts applicant has filed this OA, thereby praying for the aforesaid reliefs.
4. In the reply respondents have stated that the applicant has been reinstated in terms of the impugned letter dated 12.05.2011 voluntarily and without any pressure and the applicant was fully aware of the conditions mentioned therein and thus he cannot now turn around and claim that such conditions are illegal or arbitrary. Respondents have further stated that the Labour Court has only awarded continuity in service without back wages. Thus, in terms of the law laid down by the Apex Court, continuity without back wages only allows the workman to count his past service for pensionary benefits. It does not entitle the workman for any notional fixation of pay, ACP, increments and the period for which he remained out of service is not to be counted for the purpose of pensionary benefits. Continuity without back wages only means that on reinstatement in service his past service will be counted towards pensionary benefits and his pay on reinstatement will be fixed as per the last drawn pay when his services were terminated.
5. We have heard learned counsel of the parties and gone through the material placed on record. Since the grievance raised by the applicant is regarding the impugned order dated 12.05.2011 (Annexure A-1) passed pursuant to the award given by the Labour Court and according to the applicant such order has been passed in breach of the Award, inasmuch as respondents have not treated the intervening period from the date of termination till date of reinstatement as continuity in service, including for the purpose of pensionary benefits, thus according to us the appropriate remedy for the applicant is to invoke the provisions of Section 29 of the Industrial Disputes Act, 1947, instead of filing the OA before this Tribunal, as it is settled law that when a person has invoked the provisions of a particular Act and if remedy for redressal is provided in that Act, only the remedy under that Act should be invoked instead of resorting to other remedies. Accordingly, OA is disposed of with the aforesaid observations without going into the merits of the case.
6. However, before parting with the matter we wish to observe that in the impugned order dated 12.05.2011 respondents while reinstating the applicant with immediate effect inter alia have also recorded that his services is not to be counted for the purpose of pensionary benefits for the intervening period whereas in the reply-affidavit respondents have also stated that continuity without back wages only means that on reinstatement in service his past service will be counted towards pensionary benefits and his pay on reinstatement will be fixed as per the last drawn pay when his services were terminated. This stand taken by the respondents appears to be contradictory in terms of the impugned order dated 12.05.2011 (Annexure A-1) passed pursuant to the Award passed by the Labour Court, whereby the applicant has been directed to be reinstated in service with continuity of service. Suffice it to say that appropriate authority in the Department may look into this aspect and pass appropriate orders and if need be, reconsider the matter and pass fresh orders, without dragging the applicant to the remedy available to him under Section 29 of the Industrial Disputes Act, 1947.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.