Delhi District Court
Sh. Richpal Singh vs Dtc 1 Page Out Of 25 on 23 January, 2014
IN THE COURT OF SH. SANJEEV KUMAR
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID NO. 02/13 (Old ID No. 106/96)
IN THE MATTER BETWEEN:
Sh. Richpal Singh,
B. No. 7886,
R/o. H. No. G200, Shakurpur, Anand Vas,
Delhi - 110 034.
.........workman
AND
M/s. Delhi Transport Corporation,
IP Estate,
New Delhi.
.......management
Date of Institution : 16.05.1996
Date of Award
: 23.01.2014
A W A R D
1 Vide this award, I shall decide the Industrial Dispute
against the illegal removal of the claimant/workman Richpal by the
management of DTC which was remanded back by the Hon'ble
ID No. 2/13 Rishpal Singh Vs. DTC 1 page out of 25
High Court of Delhi vide its order dated 16.9.2013 while setting
aside the award dt. 1.11.2004 passed by my Ld. Predecessor.
2. Present Industrial dispute was referred for adjudication
by the Secretary (Labour) Government of the National Capital
Territory of Delhi vide No. F.24 (3762)/95Lab./11797807 dated
16.2.96referred the industrial Dispute between the management of Delhi Transport Corporation and its workman Sh. Richpal Singh for adjudication to the Labour Court in the following terms of reference : "Whether the removal of Sh.
Richpal Singh from service by the management is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?
3. The notice of the reference were issued to both the parties.
4. The case of the workman Richpal Singh as stated in the claim petition is that he joined the management of DTC as Conductor in 1972 and after serving two years he was terminated upon which he raised an industrial dispute but the appropriate Government refused to make any reference. He filed a Civil Writ ID No. 2/13 Rishpal Singh Vs. DTC 2 page out of 25 Petition and Hon'ble High Court in the year 1985 reinstated the workman with full back wages and continuity of service with all other benefits. He further stated that since then the management was on the lookout for an opportunity to somehow or the other to involve the workman and get rid of him and on 10.3.84 (which is actually 10.3.94) when he was on duty it was falsely alleged that he had taken back the sold tickets from the passengers and had resold the same. The value of which is Rs. 2/. The checking officials fabricated a false case against him without realizing that the case was a case of wrong punching of tickets. He further alleged that he vide letter dated 28.3.94 requested for documents which were not supplied by the management and in the absence of those documents he submitted the reply to the chargsheet and without perusing the reply to the chargesheet and recording the grounds to hold an enquiry. He further stated that enquiry was not hold by the competent officer and when the statement of the checking officer were recorded during the enquiry proceeding all the checking officers were sitting in the same room. The statement of the witnesses were recorded in the presence of other witnesses and his objection was not considered by the Enquiry Officer in this regard. He further alleged that though he had write to defend from the ID No. 2/13 Rishpal Singh Vs. DTC 3 page out of 25 officer of the union bearer or to get assistance from the coworker but he was not informed about the same and thus with held the said basic information amount to vitiated the enquiry. He further stated Presenting Officer was appointed by the management and the duty of the Presenting Officer was performed by the Enquiry Officer himself and the Enquiry Officer played role of Presenting Officer and cross examined the witnesses at length and he was not supplied complete documents by the Enquiry Officer despite his letter dated 24.10.94 and denial of the documents was not under the law and not only this the he again wrote a letter dated 25.10.94 to the Depot Manager stating therein how the documents connected with his case and the letter was duly delivered and one officer after receiving the letter went to the Depot Manager and had some talks and he canceled his signatures on the receipt of that letter and handed over the letter to the workman and this shows that Depot Manager (disciplinary authority) was very bias. He also went to Depot Manager to meet and he gave time 4 pm but Depot Manager left the office at 3.40pm and telegramme chairman and Depot Manager therefore, the workman was removed from service on 28.10.94.
He further alleged that since the management has ID No. 2/13 Rishpal Singh Vs. DTC 4 page out of 25 contravention the principles of natural justice by not with holding the necessary documents, therefore, the order of removal from service is liable to be struck down. He further stated that at the time of removal he was getting Rs. 5000 approximately. He sent demand notice dated 10.11.94 to the Chairman by requesting him to withdraw the illegal order of removal and reinstate him with full back wages and continuity of service but the management had not cared acknowledged its receipt. The workman made efforts to find suitable employment but he could not get any alternative employment and therefore, he filed the conciliation proceedings before the Conciliation Officer whereby the management was advised by the conciliation officer to reinstate the workman but the management did not pay any heed to the advise.
5 The notice of the claim was issued to the management and management was asked to file the written statement but the same was not filed. On 8.8.97, the Ld. Predecessor has framed the following issue : "Whether the domestic enquiry was not held according to principles of natural justice and is therefore not proper & valid.
ID No. 2/13 Rishpal Singh Vs. DTC 5 page out of 25 6 After framing of issue, the case was listed for workman's evidence. The workman led his evidence by way of affidavit on 16.9.98. Thereafter, management led its evidence through Sh. S K Jacub, Enquiry Officer, official of the management by way of affidavit on 5.11.99. However, my Ld. Predecessor vide his order dated 12.7.00 has declared the enquiry vitiated while deciding the preliminary issue by saying that written statement was filed when the order has already been dictated. The management was given liberty to prove the misconduct in the court and framed the following additional issue was framed :
"As per terms of reference."
7 The written statement was filed by the management. It is admitted by the management that workman joined the management of DTC on 1.12.1972 as a Conductor on monthly basis and his service was terminated on 27.4.74 and later on he was reinstated on the direction of Hon'ble High Court vide order dated 21.9.1985. However, it was denied that management was on the lookout an opportunity to involve the workman in false case and ID No. 2/13 Rishpal Singh Vs. DTC 6 page out of 25 therefore, checking officials fabricated a false case against the workman. Further, it is alleged by the management that the workman was on duty on bus no. 6317 of rout 115 on 10.3.94, the said bus was checked by checking staff at 17.45 hours at the ISBT in the down direction. The route was Wazirpur JJ Colony to Railway station. The checking staff found that the conductor collecting the tickets from the passengers already sold by him in the up direction as the passenger was a lightening from the bus after completing their journey and selling the said tickets already punched in the up direction. The conductor sold the ticket of Rs. 2/ already soled in the up direction out of which ticket bearing no. 683/23522 of Rs. 2/ was found from a passenger on which the workman admitted his guilt and issued ticket of Rs. 2/ bearing no. 23530. It is further alleged that ticket bearing no. 683/23525 duly punched of direction between No. 5 and 6 was also found from the hand block. On checking the cash an amount of Rs. 1/ was found less. The aforesaid act of workman amounts committing misconduct. Further, it is alleged that the workman vide his application dated 28.3.94 requested to provide some documents to enable him to submit the reply to chargeseheet. Accordingly, vide office memo No. WPDI/AI (T)/CH14/94/1140 dated 4.4.94 was ID No. 2/13 Rishpal Singh Vs. DTC 7 page out of 25 advised to inspect the file on receipt of the said memo. Thereafter, workman inspected the case file on 4.4.94 and put his signatures on the letter at page 19 with the remarks " that he has seen the case file." He further submitted that the reply to the chargesheet on 331.3.94 was considered by the Dy. Manager Traffic but not found satisfactorily. Thereafter, the case was entrusted to the Enquiry Officer B.B.M.DI for conducting oral and detailed enquiry in the case by the Dy. Manager (Traffic). It is further alleged that the workman was given full opportunity to defend his case and was asked by the Enquiry Officer to take assistance from coworker or labour welfare Inspector to defend his case but he denied the same under his signatures at page 5/N. It is further alleged that the enquiry was conducted as per procedure of the Corporation and according to principles of natural justice. It is alleged that all the witnesses were cross examined during the enquiry proceedings. The passengers were also called by the enquiry officer in the enquiry twice by sending registered AD and UPC letter but the passenger did not appear. Hence, enquiry was conducted in a fair manner and after conducting the enquiry, Enquiry officer submitted his report before the disciplinary authority. The Depot Manager after receiving the findings from the ID No. 2/13 Rishpal Singh Vs. DTC 8 page out of 25 Enquiry officer served with a show cause notice for removal to the workman in view of seriousness of the case. It is further alleged in para 11 and 12 of the reply that the workman in his application dated 16.9.94 requested to provide the certain documents and accordingly he was supplied the documents vide memo no. WPD I/AI (T)/Ch14/94/3096 dated 24.10.94 with the direction to submit the reply to show cause notice within 72 hours on receipt of the memo and these documents were received by his son at his residence on 24.10.94 since the workman was under suspension. The workman reported in the office on 27.10.94 at about 15.30 hours and also requested to provide remaining documents which were not provided to him in accordance with application dated 16.9.94. His application was received by Dy. Manager (F) by putting his signatures and after few months he again came in the office and became to with the application given by him as he had to on his request application was returned to him after giving his signatures by Dy. Manager (F) and signatures the workman did not submit the reply to the show cause notice therefore he was removed from the service on 28.10.94. In clause 15 (2)/6 D.R.T. A (condition) and issue service regulations 1952 vide memo No. WPDI/AI(T)/CH14/94/3139 dated 28.10.94 and thus in no where ID No. 2/13 Rishpal Singh Vs. DTC 9 page out of 25 plead of natural justice were floated. Further, it was stated that he was drawing Rs. 1621 in the month of October 94 and salary of Rs. 1325 in September, 1994 during the period of removal as he was under suspension at the time of removal. However, it is admitted in the written statement that workman had sent application dated 10.11.98 addresses Depot Manager on 28.10.98 and demanded reinstatement with full back wages and continuity of service but appeal was rejected vide order dated 14.2.94 by the Dy. CGM/SNP. 8 Thereafter, workman again led his examination in chief evidence by way of affidavit Ex. WW1/A and he was cross examined.
9 The management examined three witnesses. Sh. S. K Jakob enquiry officer as MW1 who led his evidence by way of affidavit EXMW1/AX and proved documents Ex. AW1/A to AW1/E. Omparkash ATI as MW2 who led his evidence by way of affidavit Ex. MW2/A and also relied upon document EXMW2/1 to EXMW2/7 Sh. Prem Shanker ATI as MW3 who also tendered his evidence thorugh an affidavit as Ex. MW3/A and also rely upon documents as Ex. MW3/1 to 3/2.
10 Both the parties argued before my ld. Predecessor and ID No. 2/13 Rishpal Singh Vs. DTC 10 page out of 25 also filed written arguments and they did not prefer to argued further and stated that case be decided on the basis of written submission filed by them.
11 ISSUE NO. 1
As per terms of reference.
The management in its written statement has contended that service of workman was terminated due to misconduct of the workman as he resold the tickets to passengers for earning undue profit. The onus to prove the misconduct of the workman is upon the management. To prove the misconduct, the management has examined three witnesses MW1 SK Jacob, MW2 Omparkash, ATI, MW3 Prem Shanker, ATI.
12 MW1 SK Jacob in his evidence led by way of affidavit Ex. MW1/A and deposed that the chargesheet Ex. AW1/A was issued to the workman on 25.3.94 and the workman had given reply vide Ex. AW1/B. The inquiry was entrusted to the Enquiry Officer vide order dated 19.4.94 Ex. AW1/C and he further proved the inquiry proceedings Ex. AW1/D and finding of the Enquiry Officer Ex. AW1/E. ID No. 2/13 Rishpal Singh Vs. DTC 11 page out of 25 13 MW2 Omparkash in his evidence led by way of affidavit Ex. MW2/A has deposed that he has checked the bus no. 6317 at ISBT at 10.3.97 in the company of Prem Shanker ATI (MW3) and they challenged the workman vide challan no. 179316 which was counter signed by Prem Shanker ATI and proved the copy of the challan Ex. MW2/1. It is further deposed that report was submitted to the concerned authority alongwith passengers' statement and tickets bearing no. 23522, 23523 and 23530 which he proved as Ex. MW2/2 to MW2/6 respectively. Further, deposed that concerned authority issued chargesheet to the workman Ex. MW2/7. In his cross examination, he deposed that bus was running down side when the same was checked and they had checked the bus when it was standing at ISBT bus stand. Further it is deposed that ticket MW2/4 is punched as down side ticket. This ticket was first issued up direction and sold to same passenger but it was taken back from the passenger and then used for down direction. However, admitted this suggestion that he himself has not witnessed to the said fact that workman had collected the ticket from the passenger earlier going in up direction. He admitted that he had not earlier seen the transactions of the ticket but obtained the same from the passenger. He has further stated that ticket no. 23530 ID No. 2/13 Rishpal Singh Vs. DTC 12 page out of 25 MW2/5 was given by the conductor as unpunched ticket after accepting his guilt. He denied the suggestion that workman had not admitted his guilty. He further stated the ticket no. 23530 Ex. MW2/6 is also punched in up direction and was found in the hand block of the conductor. The conductor has canceled the up direction punching and it was not sold. He denied the suggestion that all the above three tickets were of down direction and were issued to the passenger going towards down passenger. He further stated down no. starts 23510 which is also over writing. He telling about the same from the way bill No. 952837 Ex. MW2/8 and it is started from Wazirpur. He further deposed that vehicle was going to railway station and has closed the No. 23531 of Rs. 2/ ticket. He denied the suggestion that ticket no. 23522, 23530, 23525 were of down direction. But he voluntarily stated that workman had done over writing and shown the ticket no. 23520 as 23510. No suggestion has been given by the workman that no checking was done or that tickets Ex. MW2/2 to 6 were not seized. 14 MW3 Prem Shanker ATI has also corroborated the testimony of MW2 in his evidence led by way affidavit Ex. MW3/A. He has also deposed that he checked the bus No. 6317 on 10.3.94 at ISBT in the company of MW2 Omparkash ATI and ID No. 2/13 Rishpal Singh Vs. DTC 13 page out of 25 MW2 had challaned the workman and made the report to the authorities on the basis of which chargesheet was issued on the same day. He also deposed that copy of the challan was counter singed by him and proved the copy of challan and report as Ex. MW3/1 and 3/2 respectively. In his cross examination, he has deposed that he had checked the running bus he admitted the suggestion that they had checked the down side bus. He admitted that he had not recorded the statement of said passenger and also admitted that he has signed the report prepared by MW2 Omparkash. He denied that he do not checked any passenger or had not collected one unpunched ticket from the workman. He further stated that one more unpunched ticket was collected from the hand block of the workman. He admitted that all three tickets are of down side only. He denied the suggestion that he has made a false report and falsely challaned the workman. 15 Thus, nothing has come out in the cross examination of the MW2 and MW3 to disprove the fact that checking was done by the MW2 alongwith MW3 or that tickets were not seized during checking from the workman which were of down direction but punched as up directions. Infact workman also in his evidence has admitted the fact of checking by MW1and recovery of ticket. But ID No. 2/13 Rishpal Singh Vs. DTC 14 page out of 25 the defence of workman is that he wrongly punched the down direction tickets as upward direction but he denied that recovered tickets was earlier sold to upward direction passanger and then taken back from them and resold to down ward direction passangers.
16 In his defence the workman has only examined himself as WW1. He led his evidence twice one prior to quashing of the inquiry report i.e. on 16.9.98 and second time on 7.10.03. In his affidavit Ex. WW1/A he has almost stated the same facts as stated by him in his claim statement. In his second affidavit Ex. WW1/A he has deposed that he was falsely charge sheeted. He was selling the ticket while going in the down direction and wrongly punched five tickets in up side direction and he has explained the said fact to the checking staff and despite this he was charge sheeted on the wrong report of the checking staff. He further deposed that finding of Rs. 1 less cash from his possession proved that he has not received any extra money on the basis of wrong punched ticket therefore, he has been wrongly terminated from the service. In his cross examination he admitted that bus was checked at ISBT and was challaned. The passanger statement were not recorded in his presence. He admitted that unpunched tickets were recovered by ID No. 2/13 Rishpal Singh Vs. DTC 15 page out of 25 checking staff and on demand he surrender tickets 23522, 23530 and 23525. He also admitted he received chargesheet. 17 It is contended on behalf of the workman that since the enquiry has been held vitiated vide its order dated 12.7.2000 therefore, management was required to prove charges on merit by adducing additional evidence and onus is on the management to prove the misconduct. Further, it is stated in the written arguments that when the chargesheet was read over to the workman during the inquiry proceedings the enquiry officer himself rely that the charge sheet was defective and he gave in writing also that the file be sent for correction of the charge sheet but the same was not corrected. Further it is stated that checking staff had not taken any statement of any passenger from whom the workman allegdly took back the tickets for reselling. The witness MW2 has admitted that he had not seen the transaction of the ticket obtained from the same from passenger and had not seen the workman selling the ticket to the passenger. Hence, misconduct of cheating against the workman as is proved. It is further argued that no evidence has been given regarding reselling of tickets by the workman hence charges of collecting tickets punched from the passengers of upside direction after selling them have not been proved. It is further argued that if ID No. 2/13 Rishpal Singh Vs. DTC 16 page out of 25 the conductor had resold the tickets then the cash would have been excess but in the present case the cash was found less by Rs. 1/. In these circumstances, the management has failed to prove the charges of misconduct against the workman.
18 On the other hand, it is argued on behalf of the management that workman has committed the misconduct as he collected back the ticket from the passenger of upward journey and sold the same to the passenger in down direction and kept the money. It is further argued that the workman was served with a charge sheet dated 25.3.1994 for committing irregulaties on 10.3.94 and since the inquiry was declared vitiated by the court on 12.7.00. therefor management has proved the misconduct by examining the witness namely Omparkash ATI as MW2 and Prem Shankar ATI as MW3 and they proved the surrender of unpunched tickets, challan, passengers statement, chargesheet and the other incriminating material against the workman which clearly establishes the guilt of the workman. It is further stated non examination of passengers is not fatal to the case of the management if the checking staff proves the guilt of the workman. It is not necessary to prove the misconduct of the workman. It is further argued that the management clearly prove the charges of misconduc and claimant is ID No. 2/13 Rishpal Singh Vs. DTC 17 page out of 25 not entitled for for any relief .
19 I have considered the testimony of the witnesses and gone through the record as well as judgement relied upon by the parties. on appreciation of the testimony of the MW1 and MW3 as well as of WW1 it remained undisputed fact that a workman was conductor in DTC bus and was on bus no. 6317 going from Railway station to Wazirpur and that said bus was checked by the MW2 and MW3 when bus was going in down direction at ISBT. During checking tickets bearing no. 23522, 23525 and 23530 have been recovered from him which were of down direction. 20 As far as testimony of MW1 is concerned he was the enquiry officer and has proved the enquiry proceedings but domestic enquiry has already been held as vitiated by my Ld. Predecessor vide order dated 12.7.00, therefore, finding of the inquiry is not material. Hence testimony of MW1 is not useful to management to proved the misconduct of workman. 21 As far as testimony of MW2 is concerned though MW2 has testified that the ticket MW2/4 which is ticket no. 23522 was punched at downside direction and first issued in up direction and then sold to some passenger but it was taken back from the said passenger and then used for down direction but the witness ID No. 2/13 Rishpal Singh Vs. DTC 18 page out of 25 has admitted in the crossexamination that he had not seen the workman selling tickets to the passenger of up direction. Therefore,even if I presume that MW2 has seized the said tickets from downward passanger nothing come out against the workman to presume that earlier he had sold the same to passanger of upward direction.. So far as the ticket no. 23530 is concerned, it is stated in the written statement that the said ticket has been given by the workman to the passanger in lieu of ticket no. 23522 when ticket no. 23522 was collected by checking staff. As far as the contention that the said tickets was handed over by the workman while accepting his guilt but the workman in his cross examination has stated that he has handed over the said ticket under protest. No suggestion has been given to workman in cross examination that he has accepted his guilt while handing over the said tickets. So far as ticket no. 23525 Ex. MW2/6 is concerned, it is testified by MW2 Om Parkash that same is punched in up direction and was found in the hand block of the conductor and the conductor has cancelled the up direction punched. Therefore, nothing came out against the workman by the recovery of the aforesaid tickets. The evidence suggest since the workman has punched the ticket wrongly therefore, he kept the same in his hand block and had not issued ID No. 2/13 Rishpal Singh Vs. DTC 19 page out of 25 the same to the customer for taking undue pecuniary advantage had he had bad intention he would have sold this ticket too instead of keeping in hand block. The another contention of the Ld. AR for the management that the workman has done over writing and shown the ticket No. 23520 as '23510' is concerned the said ticket has not been produced in evidence by the management. Therefore, nothing is against the workman to infer that he has done the over writing on the ticekt bearing no. 23520 as '23510' and issued the same to the customer. Further I also find the force on contention of the workman that during the checking only Rs. 1/ was found short in cash. If the workman had sold the tickets to the passenger of the up direction and then took it back and resold the same to the passenger of down direction then he must have excess money instead of shortage of money. No explanation have been given by the management why the excess money not found in possession of the workman of the workman if he had resold the ticket as alleged by the management. Moreover, on perusal of testimony of the workman, I found that he has categorically deposed in his examination in chief led by affidavit Ex. WW1/A that he has inadvertently punched the 5 tickets of down side in to up side direction and he had tried to explain the said fact to the checking ID No. 2/13 Rishpal Singh Vs. DTC 20 page out of 25 staff i.e. MW2 and MW3 but they did not accepted his explanation. In his cross examination, no suggestion has been given to the workman that he was deposing falsely in this regard. Hence, considering the facts and circumstances, in my view management has failed to prove that the workman has committed misconduct by misappropriating there money by selling the same tickets to both upward direction passanger as well as downward direction passanger. Under the circumstances mentioned above it cannot be ruled out that MW1 and MW2 wrongly presumed that workman resold the tickets.
22 As far as the judgement relied upon by Ld. AR for the management i.e. 2004 LLR 449 DHC Delhi Transport Corporation vs. N L Kakkar & Anr. w herein it is held that :
".in an inquiry against a bus conductor for not issuing the tickets after receiving the fare, the non production f the passengers cannot vitiate the enquiry particularly when there has been reasonably sufficient evidence and also the passengers may or may not come forward before the enquiry officer or may be the resident of different places or states and as such the industrial tribunal erred in vitiating the enquiry for want of nonproduction of the passengers who have been deposed before the special Metropolitan Magistrate/ Mobile Court."
23 There is no dispute that inquiry cannot not be vititated ID No. 2/13 Rishpal Singh Vs. DTC 21 page out of 25 as alleged by the Hon'ble Suprme Curt merely because passenger has not been examined. But besides passenger the management is required to prove the misconduct of the workman through testimony of other witnesses. But as stated above in this case from the testimony of MW2 and MW3 it is not prove that workman has resold the tickets for peculiar benefits. The explanation given by the workman that he has punched the tickets in up side direction inadvertently appearing to be probable then the inference he has punched the tickets in up direction due to malafide intention for reselling the same particularly considering the fact that no excess cash was found in his possession when checking was done by MW2 and MW3. Hence, the issue of misconduct is decided against the management and I held that termination of workman was illegal. 24 It is also argued on behalf of the management that if court comes to conclusion that the charge are not proved and workman is entitled for reinstatement and back wages then only some compensation may be granted to the claimant as the parties have been fighting the present case for a long time and the relations have strained and the management also lost confidence. In the judgement relied upon by management i.e. i Sita Ram and Others ID No. 2/13 Rishpal Singh Vs. DTC 22 page out of 25 vs Moti Lal Nehru Farmers Training Institute 2008 LLR 549 it is held that :
"..Indisputably, the Industrial Court exercises discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factor therefore, were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job etc. should weigh with the court for determination of such an issue.
20. This court in a large number of decision opined that payment of adequate amount of compensation in place of a direction to be reinstated service in cases of this nature would subserve the ends of justice. {see Jaipur Development Authority v. Ramsahai and Anr., (2006) 11 SCC 684 Madhya Pradesh Administration v. Tribhuban, 2007 (5) SCALE 397 and Uttranchal Forest Development Corporation v. MC Joshi, 2007 (3) SCALE 545}
25 In case of Kishan Swaroop Vs. Project and Equipment Corporation of India Ltd., MANU/DE/3010/2007 it was held by Delhi High Court that in each and every case of illegal and unjustified termination of services, the relief of reinstatement and full back wages is not to be granted automatically and the Labour Court can mould the relief by granting lump sum compensation in lieu thereof.
26 In case of Allahabad Jal Sansthan v. Daya Shankar Rai,(2005) 5 SCC 124, it was held that :
ID No. 2/13 Rishpal Singh Vs. DTC 23 page out of 25 "6. A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration".
In case of Hindustan Tin Works (P) Ltd. v. Employees (1979) 2 SCC 80 a threeJudge Bench of Apex Court laid down :
"11. In the very nature of things there cannot be a straitjacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular***"
27 In this case now workman age is 67years as he was 57 years when his evidence was recorded on 7.10.2003. Hence he has cross the age of superannuation therefor he cannot be reinstated, ID No. 2/13 Rishpal Singh Vs. DTC 24 page out of 25 however as the workman has suffered due to illegal action of the management and he cannot be put to his original post and he has suffered legal injury, therefore, considering all the facts and circumstances of the case, I am of the view that it would be just, fair and appropriate if a compensation of Rs. 50,0000/ (Five Lakhs) is awarded in favour of workman and against the management. It is further ordered that if the amount of compensation is not paid to the workman within 30 days from the date of publication of this award, then workman will also be entitled to the future interest @ 8 percent per annum interest from the date of award till the realization of the said amount.
28 Copy of award be sent to Secretary Labour, Govt. of NCT, Delhi for publication as per rules.
File be consigned to Record Room.
Announced in Open Court on rd this 23 January, 2014.
(Sanjeev Kumar) Presiding Officer Labour Court Karkardooma Courts, Delhi.
ID No. 2/13 Rishpal Singh Vs. DTC 25 page out of 25 upon the judgement 2008 LLR 549 SC Sita Ram & Ors. vs. Moti Lal Nehru Farmers Training Institute wherein it is held that :
"that burden of proof lies upon the workman to have worked for 240 days in a year."
XXXXX ID No. 2/13 Rishpal Singh Vs. DTC 26 page out of 25 ID No. 2/13 Rishpal Singh Vs. DTC 27 page out of 25