D.T.C. Vs. SHRI BHAGAT SINGH

JUDGEMENT

(1.) By the present petition the Petitioner seeks setting aside of the award dated 22 nd November, 2002 whereby the learned Trial Court directed the management/Petitioner to reinstate the workman/Respondent with 75% back wages.

(2.) Learned counsel for the Petitioner contends that the award of the learned Trial Court suffers with gross and culpable error on the face of it which has occasioned substantial injustice to the Petitioner. The learned Trial Court has erred in deciding the preliminary issue as if it was deciding the reference and once it was held that the inquiry was not held in a fair and proper manner, the learned Trial Court should have remanded the matter back for fresh evidence instead of passing an award on the reference. The learned Trial Court failed to appreciate the judgment of the Hon'ble Supreme Court in the case of DTC vs. Sardar Singh, 2004 AIR(SC) 4161 wherein it was held that the period of unauthorized leave without pay can be treated as a misconduct under standing orders. The learned Trial Court has transgressed its jurisdiction while granting reinstatement with 75% back wages and also failed to appreciate the various factors that need to be taken into consideration while awarding back wages as enunciated by this Court in Asiatic Air Conditioning and Refrigeration Pvt. Ltd. vs. Presiding Officer, 2004 7 AD(Del) 487.

(3.) Per contra learned counsel for the Respondent contends that Petitioner/management has filed the instant petition belatedly after a delay of three years and two months which is even beyond the time prescribed for civil proceedings and is therefore, barred by delay and laches. The explanation rendered on account of such delay by the Petitioner is false and not bona fide. The Petitioner has been participating in the recovery proceedings before the Labour Commissioner and has already released an amount of Rs. 4,58,163/- towards arrears of back wages for the period from 16 th January, 1988 to 31 st December, 2002. The Petitioner had slept over the matter after the passing of award and even during the recovery proceedings and has, now, belatedly filed the instant petition challenging the award dated 22 nd November, 2002 after almost three years and hence, is estopped from pursuing the present petition. Reliance is placed on the judgment of this Court in DTC vs. Jai Bhagwan, Ex. Driver, 2003 102 DLT 376 in support of this contention. The learned counsel further contends that the workman never remained on leave continuously for a long period and as such the period of absence in question has been regularized as leave and it does not amount to any misconduct. The charge sheet itself shows that the workman availed leave without pay, which shows that it was a case of leave. The learned Trial Court rightly held that the leave without pay was not a misconduct.