Central Administrative Tribunal - Delhi
Hon Ble Mr. G.George Paracken vs The Chairman Cum-Md on 11 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA-1333/2011
New Delhi this the 11th day of August, 2011.
Honble Mr. G.George Paracken, Member(J)
Honble Dr. Veena Chhotray, Member(A)
Nand Kishore S/o Late Sh. Bhola Ram,
Conductor, B.No.16118 working in,
Kalkaji Depot, D.T.C.
R/o E-411, Navjiwan Camp
Near Pocket A/10, Gobind Puri
Kalkaji, New Delhi-110019. ... Applicant.
(By Advocate: Shri Sanjoy Ghose)
Versus
The Chairman cum-MD,
Delhi Transport Corporation,
DTC Hqrs., I.P. Estate,
New Delhi-110002. . Respondent.
(By Advocate: Shri Ajesh Luthra)
ORDER
Shri G.George Paracken The applicant has approached this Tribunal after the respondent Delhi Transport Corporation (DTC) has refused to entertain his Annexure A-4 representation dated 03.12.2010. His request in the said representation was to consider the Annexure A-3 Award of the Addl. District and Sessions Judge, POLC-VII, KKD Courts, Delhi in ID No. 162/97/09 dated 21.08.2010 and comply with the directions contained therein.
2. The brief background leading to the filing of this O.A is necessary to be delineated here. The applicant was initially engaged as a Conductor in the year 1979. The respondent terminated his service vide Memo dated 18.07.1994 for the charge of unauthorized absence from duty stated to have been proved during the departmental enquiry. The respondent DTC also filed an application for approval u/s 33 (2) of the Industrial Disputes Act, 1947 (I.D. Act for short). Vide the Annexure A-1 Award dated 28.11.2005, the learned Presiding Officer, Labour Court No. VII, Delhi, passed an order reinstating the applicant with continuity of service and other consequential benefits and also granting him 75% back wages. The relevant part of the said award is as under:
12. In view of findings of my ld. Predecessor on issue No.1, I am satisfied that the services of the workman have been terminated illegally and unjustifiably by the management. Accordingly, this issue is also decided in favour of the workman and against the mgt.
13. Now, it is to be considered as to what relief, the workman is entitled. Ld. AR for the workman has argued that the workman remained unemployed and accordingly, he is entitled to get full back wages and reinstatement. Opportunity was given to the management to lead evidence to show that the workman was gainfully employed from the date of his removal from the service. The management has not produced any evidence despite opportunity afforded to it. Thus, the management has failed to discharge its burden.
14. In these circumstances, I am of the opinion that the workman is entitled to reinstatement with continuity of service and other consequential benefits. However, keeping in view the long delay, 75% (seventy five percent) of the back wages are granted. Accordingly, the management is directed to reinstate the workman Sh. Nand Kishore and to pay him 75% of his back wages from the date of his removal and other consequential benefits with continuity of service. The reference is answered accordingly. Copy of the award be sent to the appropriate Govt.
3. The respondent DTC filed an appeal against the aforesaid Award before the High Court of Delhi vide Writ Petition No. 16265/2006. During the pendency of the aforesaid writ petition, the applicant moved CM No. 7081/2008 under Section 17-B of the Industrial Disputes Act, 1947. Vide Annexure A-2 order dated 05.12.2008, the Honble High Court directed the DTC to pay the last drawn wages or minimum wages, whichever is higher to the applicant from the date of the award till the disposal of the main writ petition subject to his filing an undertaking that in the event of the writ petition being allowed, he shall return the difference between the minimum wages and the last draw wages immediately. The relevant part of the said order reads as under:
In view of the above and having regard to the facts and circumstances of the case, the instant application filed by the respondent/workman is allowed and the petitioner/management is hereby directed to pay the last drawn wages or minimum wages, whichever is higher to the respondent from the date of the award till the disposal of the main writ petition subject to respondents filing an undertaking within four weeks from today that in the event of this writ petition being allowed, he shall return the difference between the minimum wages and the last drawn wages immediately. The arrears be paid by the petitioner to the respondent within eight weeks and the petitioner should either reinstate the respondent in service without prejudice to its rights and contentions or continue to pay his wages at the rate mentioned hereinabove till the disposal of the present writ petition. The instant application stands disposed of accordingly.
4. Thereafter, the respondent DTC issued letter dated 16.02.2009 stating that he was allowed to resume duty in lieu of payment u/s 17B of the Industrial Disputes Act with immediate effect.
5. Later, the Honble High Court, vide order dated 20.07.2009, in Writ Petition No. 16262/2006 (supra), remanded the matter back to the Labour Court for a fresh decision on the charge of misconduct after giving an opportunity of hearing to both the parties. Subsequently, the learned Industrial Adjudicator passed the final Annexure A-3 Award in ID No. 162/97/09 dated 21.08.2010 wherein it was held that the penalty awarded by the respondent DTC was neither justified nor proportionate. Accordingly, the Labour Court set aside the order of dismissal and awarded the penalty of stoppage of two increments with cumulative effect. The operative part of the said Award dated 21.08.2010 is as under:
Thus, in view of the above, I am of the opinion that the misconduct committed by the Workman does not call for such a harsh and major punishment. Since the penalty awarded is not justified and the penalty which has been provided includes stoppage of increment, I set aside the order of dismissal and award the penalty of stoppage of Two Increments with Cumulative Effect and the Workman is reinstated with continuity of service, but without back wages.
6. However, the applicant continued to receive wages under Section 17B of the Industrial Disputes Act and was not paid the same amount of salary which was being paid to the similarly situated employees despite doing identical work. He has, therefore, made the Annexure A-4 representation dated 03.12.2010 requesting them to comply with the directions contained in the aforesaid Award.
7. The learned counsel for the applicant Shri Sanjoy Ghosh has submitted that after the second Award having been decided in favour of the applicant, the engagement can no longer be termed as being one in lieu of Section 17B of the Industrial Disputes Act and since the respondent has not challenged the said Award, the same has become final and they are bound to give effect to the same. In this regard, he has relied upon the judgment of the Apex Court in State of Haryana Vs. Charanjit Singh (2006 (9) SCC 321) wherein the principle of equal pay for equal work was upheld. It was further held in that judgment that the quality of the work done is the test and the status of the workmen is immaterial. He has also relied upon the judgment of the Honble High Court of Delhi in Writ Petition No. 5183/2003 decided on 17.02.2010 Delhi Transport Corporation Vs. Phool Singh and Anr. wherein the case of Charanjit Singh (supra) was also considered. The relevant part of the said judgment is as under:
10. The policy of the petitioner DTC to take work from such employees to whom payment under Section 17B of the Act has been directed is understandable. The DTC does not want to pay under 17B to its own loss. However, DTC cannot at the same time be permitted to, by so calling the workman for joining duties, cause loss to the workman. Experience of life shows that stepping out of the house is an expensive affair and involves incurring of expenditure not only for transportation to and fro the place of work but also on making oneself presentable to the outside world in terms of clothing, personal hygiene and social niceties. What the legislature compels the employer to pay to the employee by way of condition for challenging the award of reinstatement and thereby in the interregnum depriving the workman of the benefit under the award, cannot form a scale/measurement of payment which the employer is required to make for availing such services. A provision of law intended to be beneficial to the workman in a social welfare statute cannot be made to work against the workman. What was given to the workman by one hand cannot be permitted to be taken away by the other.
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18. The principle of equal work for equal pay may also be invoked. The petitioner DTC is clearly taking the work of a conductor from the workman as is evident from its request to the workman to have renewed his conductor?s licence. There is no justification for paying him lesser than the others doing the same work, even though the status of the respondent workman cannot be equated to that of a permanent employee. However the Supreme Court in State of Haryana Vs. Charanjit Singh AIR 2006 SC 161 has held that for application of said principle, the quality of work is the test. The status is immaterial. There can be no difference in the quality of work by the respondent and other conductors. Moreover, the respondent is seeking equality with those appointed on the date he so joined i.e. w.e.f. 24th March, 2009 and not of those with seniority as of the respondent, if the award were to be implemented.
19. The application, therefore, succeeds. It is held that the petitioner, if takes the work from the respondent workman is liable to pay therefor to the workman equal wages/emoluments as being paid to the others. The respondent workman has claimed same emoluments as those paid to conductors appointed at the time when the respondent workman was asked to join vide letter dated 17th March, 2009 (supra). The said request of the workman is allowed. Similarly it is directed that the respondent workman would be entitled to same holidays as other conductors of his standing as aforesaid. The arrears so worked out from the date of the respondent workman joining duty till date be paid to the respondent workman within four weeks herefrom. However, since the petitioner DTC had asked the respondent workman to join the duties apparently without knowledge that it may be called upon to pay the same emoluments as paid to its other workmen of the same class, an option is given to the petitioner DTC to within four weeks herefrom withdraw the said option failing which it shall remain liable to pay the wages/emoluments in terms of the above. The respondent workman is also warned that if the respondent workman is found to be in dereliction of his duty and/or seeking to earn without working, it will be presumed that he has an alternative adequate source of employment and which may result in recall even of the order under Section 17B of the Act.
8. During the course of arguments, the learned counsel for the respondent DTC produced a copy of the letter No. PLD-III/Ex-Conductor/2011/3585 dated 13.06.2011 wherein it has been stated that the applicant, who was removed from the service of the DTC w.e.f. 18.07.1994 under Clause 15 (2) (vi) of the DRTA (Conditions of Appointment & Service) Regulations, 1952 vide order dated 18.07.1994 was allowed to resume duty in lieu of payment under Section 17B of the Industrial Disputes Act w.e.f. 16.02.2009 without prejudice to the rights and contentions of the DTC in the pending writ petition vide PLDs memo dated 16.02.2009. However, as per the decision of the competent authority, the aforesaid letter dated 16.02.2009 has been withdrawn with immediate effect. The learned counsel for the applicant has submitted that the aforesaid action of the respondent-DTC in withdrawing their earlier Memo dated 16.02.2009 allowing the applicant to resume duty in lieu of payment under Section 17-B of the I.D. Act with effect from the same date, is with the oblique motive to avoid payment of wages to him as they were paying to other regular conductors.
9. We have heard the learned counsel for the applicant Shri Sanjoy Ghose and the learned counsel for the respondents Shri Ajesh Luthra. The only question to be considered is whether the applicant is eligible for the full pay and allowances like regular conductors during the period he worked under Section 17B of the Industrial Disputes Act, 1942. In other words, whether he should have been paid the entire salary and allowances for the period from 16.02.2009 onwards. In our considered view, since, by the second Award dated 21.08.2010, the Labour Court has once again set aside the order of dismissal/termination and substituted with the award of penalty of stoppage of two increments with cumulative effect and the respondent-DTC has accepted the same, there is no question of the applicant continuing under Section 17B of the Industrial Disputes Act, 1947. In other words, the order of termination/dismissal of the applicant from service w.e.f. 18.07.1994 has become non-existent issue.
10. In view of the above position, we allow this O.A. and accordingly grant the prayer of the applicant. The respondent DTC shall issue necessary orders to pay the applicant the arrears of salary from 16.02.2009 till date and to pay him current wages as paid to their other Conductors of equivalent seniority. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Veena Chhotray ) ( G. George Paracken ) Member (A) Member (J) SRD