DELHI TRANSPORT CARPORATION Vs. RAM KISHAN YADAV

JUDGEMENT

(1.) THE respondent -workman was employed with the appellant Delhi Transport Corporation on 28.3.1979 as Retainer Crew Driver. He was brought on monthly rates of pay with effect from 28.12.1979. It appears that in the year 1986, he started remaining unauthorizedly absent. A charge -sheet dated 19.11.1986 was served upon him to which he replied. Thereafter inquiry was conducted. As per the inquiry officer's report dated 11.5.1987, charges of unauthorized absence stood proved. Show cause notice dated 12.5.1987 was given on that basis proposing to impose the punishment of removal from service. It is the case of the appellant that no reply thereto was given even after reminder dated 12.6.1987 also served upon him and thereafter vide order dated 23.7.1987, the respondent -workman was removed from service. Admittedly, the workman did not challenge the said termination by filing any proceedings. According to him, he kept on making representations as he had no knowledge of the termination of his services since he was not served with any such order of removal from service. Further, according to the workman, though he kept making so many representations but was not given any reply. Be as it may, inspite thereof, the workman never raised any industrial dispute immediately thereafter. However, he sent demand notice only on 2.8.2004 making a demand that he should be taken back in service. When the demand of the workman was not accepted, he raised industrial dispute in the year 2005 which was referred to the Labour Court for adjudication with the following terms of reference:

(2.) AFTER recording the evidence and hearing the counsel for the parties, the Labour Court passed its award dated 17.2.2011. In so far as issue No. 1 is concerned, after detailed discussion, the Labour Court came to the conclusion that reference could not be set aside or quashed simply on the ground of delay and the discretion was with the Labour Court, in case of belated reference, to mould the relief. The Labour Court gave these findings referring to the judgment of the Supreme Court in Ajaib Singh v. Sirhind Cooperative Marketing -cum -Processing Service Society Ltd., : (1999) 6 SCC 82. On merit, the termination was held to be bad in law. Under these circumstances, the Labour Court granted reinstatement of service and 60% back wages with continuity of service and consequential benefits. For giving a relief of 60% back wages, Labour Court again relied upon the judgment of Ajaib Singh (supra) where 60% back wages were given. The appellant filed writ petition challenging this award which has been dismissed in limine by the learned Single Judge vide order dated 19.3.2012. The learned Single Judge has again referred to the judgment of Ajaib Singh (supra) holding that there was no merit in the writ petition. In the present appeal preferred against the aforesaid judgment dated 19.3.2012, learned counsel for the appellant argues that neither the Labour Court nor the learned Single Judge truly appreciated the ratio of Ajaib Singh (supra). He submits that this very judgment has been explained by the Supreme Court in subsequent case entitled Balbir Singh v. Punjab Roadways And Anr., : (2001) 1 SCC 133. In that case, the Supreme Court categorically observed that in Ajaib Singh (supra), the management had not taken the plea of delay before the Labour Court. The Court further held that even if the plea of delay has not been taken, it would have been gone into by the Tribunal.

(3.) IT is categorically held that when the dispute is raised belatedly by the workman, the Labour Court is empowered to appropriately mould the relief by denying the workman some part of back wages. While doing so, the award of the Labour Court was modified by the Apex Court by granting 60% of the back wages w.e.f. 8.12.1981 when the workman in that case had raised the demand and not from the date of termination which occurred in 1974. It is this part which is missed by the Labour Court as well as the learned Single Judge in the instant case, namely, the back wages should have been allowed from the date of demand and not from the date of termination. We accordingly modify the Labour Court award and hold that in the present case, the respondent -workman shall be entitled to back wages @ 60% from 2.8.2004 when he sent notice of demand upon the appellant. The amount shall be paid within four weeks from the date of receipt of the copy of the order.