Delhi High Court
Chhotey Lal vs The General Manager And Ors. on 22 September, 2000
Equivalent citations: 2000(55)DRJ842
JUDGMENT Vijender Jain, J.
1. This petition was filed in the year 1988 by the petitioner who was working with the Delhi Transport Corporation (hereinafter referred as DTC) as Assistant Painter in the pay scale of Rs. 225-5-260-6-290-EB-6-308 per month plus usual allowances. The service of the petitioner was terminated under Clause 14(10)(c) of Delhi Road Transport Authority (Conditions of Appointment & Service) Regulations, 1952 vide respondents letter dated 10.12.1985.
2. It is contended before me by Mr. Chandra, learned counsel for the petitioner, that the letter dated 10.12.1985 was male fide as the letter date 3rd December, 1985 was posted on 6th December, 1985. The same was received by the father of the petitioner in Delhi on 7th December, 1985 and the father of the petitioner vide letter dated 11th December, 1985, copy of the same is Annexure 'D' of the paper-book informed the respondent that his son Chhotey Lal, i.e. (he petitioner had applied for leave as he had gone to look after his ailing mother in the village.
3. However, without taking into consideration the. letter sent by the father of the petitioner or without giving any opportunity, the service of the petitioner was terminated by the respondent vide letter dated 10th December, 1985. Another argument was advanced by the learned counsel for the petitioner that in the impugned letter of termination though it has been mentioned that the leave of the petitioner has been regularised from 11th September, 1985 to 9th December, 1985 as three months extraordinary leave without pay, however without affording an opportunity of being heard in a cryptic manner, the services of the petitioner was terminated on 10th December, 1985. The letter is reproduced as follows:
"DELHI TRANSPORT CORPORATION (A GOVT. OF INDIA UNDERTAKING) D.K. DEPOT NEW DELHI 110043 No/DK/WS/85/1320 Dated 10.12.85 Sh. Chhote Lal S/o. Sh. Lal Masih Asstt Painter B. No. 8544 T. No. 38856 has been absenting himself from his duties since 11.9.85. the period of his leave has been regularised as under:-
11.9.85 to 9.12.85 3 months extra ordinary leave without pay.
Since his absence beyond 3 months cannot be regularised under Clause 14(10)(h) of the D.R.T.A. (Conditions of the appointment and Service) Regulation 1952. Sh. Chhote Lal Asstt Painter S. No. 8544 T. No. 38856 is hereby declared as deemed to have resigned his appointment from this Corporation w.e.f. 10.12.85 in accordance with Clause No. 14(10)(a) of the D.R.T.A. (Conditions of Appointment and Service) Regulations, 1952.
He is required to deposit all the D.T.C. articles in his possession with the Livery section within 24 hrs. of the receipt of this memo. Non deposit of the D.T.C. articles (badge, Identity Card-cum-Bus pass and medical card etc.) by him in accordance with the instructions contained in office order No. 21 dated 27.1.54 will render him liable to pay a penalty of Rs. 2/-'.per day for the days he keeps any of the articles of the D.T.C. in his possession after the specified period of 24 hrs. Sd/-
Depot Manager Sh. Chhote Lal S/o Sh. Lal Masih Asstt Painter B. No. 8544 T. No 38856 B 377, Jwala Puri, Nangloi N.D. 41
4. It has been contended that in any case no reasonable opportunity to show cause was afforded before being removed under the garb of deemed resignation within the meaning of Clause No. 14(10)(c) of the D.R.T.A. (Conditions of Appointment and Service) Regulations 1952 which has resulted into denial of natural justice to the petitioner. It was further contended that under Clause No. 14(10)(a) of the D.R.T.A. (Conditions of Appointment and Service) Regulations 1952, the petitioner was allowed following leave:-
(a) Casual Leave 10 days in a year
(b) Earned leave 15 days in a year
(c) Medical Leave/Sick Leave 12 days for a completed year
(d) Extra Ordinary Leave 3 months to 18 months
5. From the above table what has been argued by the learned counsel for the petitioner is that the petitioner had left with earned leave and medical leave unutilised in the last three years of service and there was no reason to inflict harsh punishment amounting to removal from service for having availed three months extra ordinary leave without pay. It is the case of the petitioner that while looking after his mother he caught sever could and fever and suffered from typhoid together with Insominia. In this regard Doctor's certificate dated 25th September, 1986 is also filed along with the writ petition.
6. In the counter affidavit filed by the respondent in paragraph 7 no specific detail has been given by the respondent as to how much leave was due to the petitioner, except that the petitioner availed 91 days leave without pay which included the period from September, 1985 to 9th December, 1985 for which period the leave was regularised without pay by the respondent.
7. Mr. S.N. Bhandari, learned counsel for the respondent has contended that what is sought to be agitated by the petitioner is an industrial dispute and there is adequate equally efficacious remedy available to the petitioner to have his grievances redressed under the provision of the Industrial Disputes Act. He has further contended that this Court while exercising jurisdiction under Article 226 of the Constitution will not exercise its jurisdiction and if it is exercised it will be exercised subject to certain self-imposed limitations. It was further contended that it was open for the petitioner to move Industrial Tribunal, the High Court normally would not entertain a petition under Article 226 of the Constitution of India by passing the regular machinery created under the statute. To support his case learned counsel for the respondent has cited Scooters India and Ors. v. Vijay E.V. Eldred, 1999 (II) CLR 231.
8. Another contention was raised by learned counsel for the respondent that if this petition is heard and decided and the order of termination is quashed, the respondent will be deprived of the opportunity of leading evidence. In support of his contention learned counsel for the respondent cited Kamal Kishore Lakshman v. The Management of Pan American World Airways Inc. and Ors., 1987 (I) LLJ and Managing Director UP Warehousing Corporation v. Vijay Narain Bajpai, 1980 (1) LLJ 222 and on the basis of the aforesaid authorities has contended that in any event this Court will not give the direction to reinstate the workman.
9. Lastly, Mr. Bhandari has contended that with regard to the principle of natural justice let the matter be remanded to the industrial tribunal where the parties can lead evidence. With regard to award of back wages, learned counsel for the respondent has contended that this Court will be award back wages to the petitioner as determination of back wages requires evidence and for that purpose the petitioner may invoke the remedy under the Industrial Disputes Act. In support of his contention, he has cited a Division Bench decision of this Court in LPA No. 67/85 dated 19.2.1999 in the matter of Delhi Transport Corporation v. Secretary, Labour, Labour Department.
10. I have given careful consideration to the arguments advanced by learned counsel for both the parties. Let me first deal with the arguments of the learned counsel for the respondent that the writ petition is not maintainable. On 19.7.1988, an order was passed by this Court directing respondent for payment of 50% of the emolument which the petitioner was drawing before his services were terminated. That order was passed 12 years back and the petitioner is being paid till date a paltry sum of Rs. 445/-per month. No appeal was preferred against that order by the respondent. As a matter of fact, on 18.8.1998, this Court directed that there was a short controversy in the writ petition which revolves round the action of the respondent purported to have been taken under Clause 14(10)(c) of D.R.T.A. (Condition of Appointment & Service) Regulations, 1952 as show cause notice date 3.12.1985 was issued to the petitioner, which was sent by Regd. AD post to the address of the petitioner at Delhi, although the address at Muradabad where the petitioner had gone to look after his ailing mother was available with the respondent. That notice was sent on 6th December, 1985. A reply was sent by the father of the petitioner on 11.12.1985. However, the respondent vide its order dated 10th December, 1985 terminated the services of the petitioner and denied the principle of natural justice as no reasonable opportunity to explain was afforded by the respondent to the petitioner. Counsel for the respondent took time to seek instructions. On subsequent dates on 28.8.1998 and 8.9.1998 adjournment was sought by the respondent to seek instructions to settle the matter. Again on 19.11.1998, counsel for the parties took adjournment to arrive at amicable arrangement. Mr. Bhandari sought time to seek instructions. Again it was at the request of Mr. Bhandari that the matter was adjourned on 17th December, 1998 for settlement. On 20th April, 1999 Mr. Bhandari made a statement that there was no likelihood of the settlement in this case and the matter was to be argued. In the meanwhile, the respondent issued certain advertisement with regard to its employees to solve their problems departmentally. An offer was made by the respondent that in terms of the advertisement issued by the respondent, the petitioner may meet the Deputy Chief General Manager (Legal). Counsel for the respondent also made a statement that pursuant to the advertisement, the petitioner has also applied to the respondent. On 27th September, 1999 Mr. Bhandari made a statement that the meeting of the Negotiation Committee was held on 24th September, 1999 in which the petitioner was also present. However, on account of some technical difficulty the meeting has been adjourned. Counsel for the respondent prayed for two months' time for conducting a fresh meeting. Thereafter nobody appeared for the respondent on subsequent dates from 31.1.2000 till 22.5.2000. On that date also Mr. Bhandari prayed for last opportunity to seek instructions. On 18.7.2000 Mr. J.N. Aggarwal, counsel appeared stating that he is appearing in place of Mr. S.N. Bhandari. However, on 18.9.2000 again Mr. Bhandari appeared. He did not talk about the outcome of the Negotiation Committee but took objection that the writ petition is not maintainable.
11. I have reproduced in this judgment the conduct of the respondent for the last two years. Their stand has been that they are trying to settle the matter. I could have appreciated that the matter could not have been settled between the parties. But to say that this writ petition is not maintainable after twelve years of the same having been filed is altogether a belated arguments. Adjournment after adjournment have been sought by the respondent to settle the matter. Now to leave the petitioner after 12 years of filing of writ petition and relegate him before the labour court would be an abuse of the process of law. The authorities cited by counsel for respondent are of no help to him keeping in view the facts of this case. The authority Scooters India (supra) cited by the counsel for the respondent is also of no help to him as in that case the writ petition was filed by the petitioner after six years of cause of action has accrued to him.
12. In view of the fact that the petitioner has applied for leave before going to look after his ailing mother in Muradabad and has left an address of Muradabad with the respondent. It is not understood as to why the respondent has sent the show cause . notice dated 3.12.1985 which was posted on 6.12.1985 at the Delhi address of the petitioner. No doubt the application for leave was made by the petitioner and until and unless that leave was sanctioned or granted, the same would not create a right in favour of the petitioner. But the respondent had the address of Muradabad where the petitioner had gone to attend his ailing mother. In order to give a fair opportunity to the petitioner, the least which could have been expected from the respondent was to issue a show cause notice at the address of Muradabad instead of Delhi so that the petitioner could have effectively replied to the said notice. There is yet another infirmity in the order of termination. From the bare perusal of the order of termination dated 10th December, 1985 which I have reproduced above in this judgment, would show that in the first paragraph it has been mentioned that the period of petitioner's leave has been regularised as under:
"11.9.85 to 9.12.85 3 months extra ordinary leave without pay."
13. Once the leave was regularised without pay then invoking the provision of Clause 14 (10) (c) of D.R.T.A. (Conditions of the Appointment and Service) Regulation, 1952 and terminations of the Services in terms of the aforesaid regulation was too harsh. Principle of natural justice demands that petitioner ought to have been heard before taking recourse of termination of his service under the relevant rules. There is another lacuna in the order of termination. Clause 14(10) (b) postulates grant of extraordinary leave extending from three months to eighteen months subject to certain conditions. If proper opportunity would have been given, the petitioner could have pursuaded the respondent to grant him leave more than three months as envisaged under Clause 14(10)(b). Clause 14(10)(b) of the rules is as under:
"(10) (b) The duration of extraordinary leave shall not ordinarily exceed three months on any one occasion. In exceptional cases; it may be extended to eighteen months subject to such conditions as the Authority may by general or special orders prescribe only when the employee concerned is undergoing treatment for:
i) pulmonary tuberculosis in a recognised sanatorium, or
ii) tuberculosis of any other part of the body by a qualified tuberculosis specialist, or
iii) leprosy in a recognised leporsy institution or a specialist in leprosy recognised as such by the State Administrative Medical Officer concerned.
Note 1 - The concession of extraordinary leave upto eighteen months will be admissible also to an employee, who for want of accommodation any recognised sanatorium at or near the place of his duty received treatment at his residence under a tuberculosis specialist recognised as such by the State Administrative Medical Officer concerned and produces a certificate signed by that specialist to the effect that he is under his treatment and that he has reasonable chances of recovery on the expiry of the leave recommended.
Note 2 - The concession of extraordinary leave upto eighteen months under this clause will be admissible only to those employees who have been in continuous service of the Authority for a period exceeding one year."
14. In the writ petition it has been averred by the petitioner in paragraph 11 that the petitioner who had to look after his ailing mother during winter nights initially caught severe cold and fever and suffered from typhoid together with Insominia. However, unmindful of his own condition he remained looking after his mother with the result that the petitioner suffered from mental disease on account of sleeplessness. Ultimately the petitioner was diagnosed a case of Schizophrenia/ (Neurosis) and from December, 1985 to September, 1986 petitioner remained ill at Muradabad and he was treated by Doctors at Muradabad and only in the last week of September, 1986 the petitioner was advised that he was fit to lead his normal life. If some opportunity could have been granted to the petitioner to explain, the petitioner could have explained his absence from duty on account of his illness also. The action of the respondent in sending the show cause notice on 6th December, 1985, although dated 3rd December, 1985 and terminating the services of the petitioner on 10th December, 1985, the proximity between these two dates shows that no fair chance or reasonable opportunity was granted to the petitioner which violated the principle of natural justice and vitiated the order of termination.
15. In the counter affidavit no explanation has been given by the respondent as to whether in the last three years of service the petitioner has availed all his leave medical or otherwise. Though counsel for the petitioner has challenged the deeming provision of resignation under Clause 14(10)(c) of D.R.T.A. (Conditions of the Appointment and Service) Regulation, 1952, which is to the following effect:
"Clause 14(10(c)- Where an employee fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where such an employee, who is granted a lesser amount of extrordinery leave than the maximum amount admissible, remains absent from duty for any period which together with the extraordinary leave granted exceeds the limit upto which he could have been granted such leave under Clause (b), he shall, be deemed to have resigned his appointment and shall, accordingly cease to be in the employment of the Authority."
16. As I am quashing the order of termination on the ground that no reasonable opportunity was granted to the petitioner, I need not go into the question of the vires of the deeming provision of resignation in the aforesaid rules.
17. Therefore, I quash the order of termination dated 10th December, 1985 and direct that the petitioner be reinstated in service forthwith. Adverting to the question of back wages petitioner has not worked for the respondent for all these years, though pursuant to the order passed by this Court respondent has been paying a sum of Rs. 445/- per month to the petitioner. Petitioner had also filed an affidavit that he was not gainfully employed elsewhere. Whether he was employed or not is a question of fact and in the writ jurisdiction this Court will not venture into that enquiry. I deem it just and proper that no order regarding back wages is made except what the petitioner received pursuant to the order passed earlier. However, petitioner shall be entitled to all consequential relief as the order of termination is quashed. It is also made clear that on account of quashing of termination letter petitioner shall be entitled to all the consequential benefits except back wages which I have already quantified. Writ petition is allowed. Rule is made absolute.