BIKRAM SINGH Vs. DELHI TRANSPORT CORPORATION

JUDGEMENT

(1.) The applications of the workman Bikram Singh under Section 17B of the I.D. Act are for adjudication. The workman Bikram Singh was employed with the DTC. DTC filed an application under Section 33(2)(b) of the I.D. Act before the Industrial Tribunal seeking approval of its decision for removal of the workman from service. The said application of the DTC was dismissed by the Tribunal vide order dated 9th April, 2002. However DTC neither allowed workman to join duty nor paid his wages. The workman filed WP(C) No. 14715/2004 seeking mandamus directing DTC to reinstate the petitioner with full back wages. Along with the said writ petition, CM No. 10504/2004 under Section 17B of the Act for directing the DTC to pay monthly wages to the petitioner during the pendency of the writ petition was also filed. Notice of the writ petition and the application was issued to the DTC.

(2.) DTC also filed WP(C) No. 19645/2005 impugning the order dated 9th April, 2002 (supra) of rejection/dismissal of its application under Section 33(2)(b) of the Act. It is significant that the said writ petition was filed in or about August/September, 2005 i.e. after more than three years of the order of rejection of the application under Section 33(2)(b) of the Act. Vide order dated 3rd October, 2005 in this writ petition, the effect and operation of the order dated 9th April, 2002 was stayed and remains stayed. The workman besides contesting this writ petition in or about August, 2006 filed CM No. 10556/2006 under Section 17B of the Act in this petition for direction to the DTC to pay the monthly wages. Notice of the said application under Section 17B of the I.D. Act was issued to the DTC on 29th August, 2006. DTC filed a reply to the said application. It was inter alia stated in the said reply that the application under Section 17B of the I.D. Act is not accompanied by an affidavit of the workman stating that he had been and continues to be unemployed. Otherwise DTC could not state that the workman was not unemployed or that he was employed elsewhere. On 25th July, 2008, the workman sought time to file an affidavit of compliance in terms of the provisions of Section 17B and this Court permitted the affidavit to be filed within two weeks thereafter. Though an advance copy of the said affidavit was given to the counsel for DTC as noted in the order dated 18th November, 2008 and the affidavit stated to have been filed in the Registry but there is no record of the said affidavit having been filed in the Registry. In the order dated 1st December, 2009 in WP(C) No. 14715/2004, it is again noted that the affidavit of non employment as required under Section 17B of the Act has not been filed. The workman was again directed to file the affidavit. Similarly again on 10th February, 2010, it was noted in the order in WP(C) No. 14715/2004 that the affidavit had not been filed. The affidavit was ultimately filed on 3rd March, 2010 and is attested on 15th February, 2010. The DTC has not filed any reply to the affidavit.

(3.) The counsel for the DTC has contended that the petitioner is attaining the age of superannuation on 15th May, 2010 and till which date only the petitioner would be entitled to payment under Section 17B. The said position is not controverted by the counsel for the workman also. However, the contention of the Counsel for the DTC is that the workman having delayed the filing of the affidavit aforesaid ought not to be held entitled to payment under Section 17B of the Act from the date of the award or even from the date of the filing of the application but should be held entitled to the same only from the date of filing of the affidavit. According to the counsel for DTC, the direction for payment under Section 17B of the Act should be only from 3rd March, 2010 till 15th May, 2010 only. It is argued that filing of affidavit of non employment is the essential requirement of Section 17B of the Act and in the eyes of law there was no application under Section 17B of the Act till the said affidavit was filed on 3rd March, 2010. It is contended that if the affidavit had been filed earlier and for which reason the application under Section 17B of the Act could not be considered till now, DTC could have in lieu of wages under Section 17B of the Act availed work from the workman and which it is now precluded from availing for the reason of the workman shortly attaining the age of superannuation. It is contended that the workman cannot be permitted to so take advantage of the situation.