Delhi Transport Corporation v. Sarjeevan Kumar

order of discharge/dismissal/termination would be held to be illegal.

¶18In the case on hand, the dispute was referred to the Tribunal on adjudication of dismissal of the workman and while the same was pending, an application under Section 33(2)(b) of the Industrial Disputes Act was filed by the management seeking for approval of the Tribunal. During the pendency of the earlier dispute, the Tribunal dismissed the application for approval. Once the application for approval is rejected or dismissed, the legal consequence would be that the order of dismissal/termination per se be unsustainable.

¶19In the case of Jaipur Zila Sahakari Bhoomi Vikas Ltd. (supra), the Apex Court held that the order refusing to give approval for dismissal on the ground of non-compliance with the provisions of Section 33(2)(b) renders it void and

inoperative and the respondent would deem to have continued in service as if no order of dismissal was passed. In our opinion, there cannot be any different approach as to the payment of backwages. Even when the order of dismissal is held to be unjustified by the Industrial Tribunal on merits or such dismissal becomes inoperative by virtue of contravention of Section 33(2)(b), payment of full backwages is not automatic as the same depends on facts of each case and the Industrial Tribunal should also consider the reasons for awarding full backwages or for that matter lesser backwages and give its own reasons.

¶20The above discussions lead to the following discussions: i. Payment of full backwages is not automatic on Labour Court/Tribunal granting reinstatement of workman. ii. The same principle is equally applicable in case an order of dismissal is set aside by the Labour Court/Tribunal on the ground of non-compliance of Section 25F of the I.D. Act. iii. The Labour Court/Tribunal shall give reasons for determining the specified quantum of backwages. iv. The burden is on the workman to show that he is entitled to full backwages or to a reasonable backwages and he is not gainfully employed during the period he was not in service of the management. v. Once materials are placed by workman on the above, the burden shifts on to the Management to disprove such claim. vi. In the event, the Labour Court/Tribunal fails to give any reason to quantify backwages, the High Court can go into the said issue and decide on quantum.

¶21Coming to the facts of this case, the Tribunal has found that the misconduct was not proved and for that reasons held the order of dismissal as unjustified and awarded full backwages without there being any reasons. There is nothing to indicate as to how the Tribunal determined the award of full backwages. It is true that the Tribunal has referred to the subsequent event of dismissal of the application under Section 33(2)(b) and has referred to the judgment in Jaipur Zila Sahakari Bhoomi Vikas Ltd. (supra). In our opinion, the award of full backwages cannot be sustained for the simple reason that there has been no reason adduced for such award by the Tribunal. The order of the learned Single Judge also suffers from the same reason and there is nothing to indicate as to the determination of full backwages. As has been held in Kendriya Vidyalaya Sangathan & Anr.(Supra), the burden is on the employee to show that he has not been gainfully employed during the relevant period when the dispute was pending and equally, while the writ petition was also pending. There is nothing to show that the workman had discharged the said burden and accordingly, in the absence of any reason, the question to be considered is whether he would be entitled to full backwages.

¶22In the case of Nicks (India) Tools (supra), the Apex Court held that in the event no reason is adduced by the Labour Court, the High Court would be justified in going into the reasons and determine the backwages depending upon the facts of the case. The only contention of the workman is that sufficient time has been taken for disposal of the dispute and for that reasons he should not be penalized by denying full backwages. On the other hand, it is the case of the management that for the same reason, the management cannot be penalized and directed to pay full backwages.

¶23In our opinion, the matter has since been pending from 22.05.1993 when the workman was removed from service. The dispute was referred vide order dated 30.06.1996 and the award came to be passed only on 04.06.2011. In the case of Municipal Corporation of Delhi Vs. Prem Chand Gupta (2000) 10 SCC 115, the Apex Court took into consideration the fact that the Industrial dispute lingered on for as long as 33 years and nobody was really to blame for the delay, except the justice delivery system and hence only 50% backwages were awarded to the workman. A similar view was taken in Bharat Cooking Coal Ltd. Vs. Presiding Officer& Anr. (1994) ILLJ 453 SC, while awarding only 50% of backwages. Thus, in such cases, the Management cannot be mulcted with a direction for payment of full backwages.

¶24In these circumstances, to strike the balance, in our opinion, the award of full backwages as awarded by the Industrial Tribunal and affirmed by the learned Single Judge in writ petition cannot be sustained and the workman would be entitled to 50% backwages.

¶25The LPA is accordingly allowed to the extent modifying the backwages from 100% to 50%. Rest of the award shall stand.

CHIEF JUSTICE

(V.K. JAIN) Judge JANUARY 21, 2013 "anb"

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: 08th January, 2013 Date of Pronouncement: 21st January, 2013. + LPA No.24/2013 & C.M.No.231/2013 (stay) DELHI TRANSPORT CORPORATION .... Appellant Through: Mr.Uday N. Tiwary, Adv. versus SARJEEVAN KUMAR. ..... Respondents Through: Mr.G.C.Charya, Adv. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE V.K. JAIN : D.MURUGESAN, CHIEF JUSTICE C.M.No.233/2013(condonation of delay of 36 days in filing the appeal) For the reasons stated in the application, delay of 36 days in filing the appeal is condoned and the application is allowed. LPA No.24/2013 1. This intra Court appeal is preferred by Delhi Transport Corporation (hereinafter referred to as "the management") being aggrieved by the order dismissing the writ petition filed by it questioning the award made by the Industrial Tribunal (hereinafter referred to as "the Tribunal") reinstating the respondent-workman (hereinafter referred to as "the workman") with full backwages. 2. The short question that arises in the appeal is as to whether the workman would be entitled to full backwages on reinstatement as per the award. The facts leading to the above question are as follows:- 3. The workman was employed with the management of Delhi Transport Corporation on 24.01.1981 as Assistant Blacksmith. He was posted in a section for repair of clutch plates during the year 1984. As carbon was being used in that section, it emanated fumes and gases which adversely affected the lungs of the workman and he developed tuberculosis during the year 1990. He had to undergo treatment for a long time and for that reasons he availed 82 days of leave. On the ground that the workman remained absent without permission, an inquiry was conducted and he was removed from service vide order dated 22.05.1993. 4. The workman raised an industrial dispute against the order of removal on the ground that the enquiry was not fair, Sh.O.P.Huria was never appointed as enquiry officer and no presenting officer was appointed. The appropriate government vide its order dated 30.08.1996 referred the dispute for adjudication:- "Whether the removal from service of Shri Sarjeevan Kumar is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?" 5. The claim petition was filed by the workman with the averment that he was not unauthorizedly absent and in any event the enquiry was not fair and proper. He raised other grounds as well. The claim of the workman was controverted by the Management on the ground that a proper enquiry was held and the workman was removed for his unauthorized absence. 6. Having gone into the evidence, the Tribunal vide order dated 13.05.2011 decided the preliminary issue regarding the fairness of enquiry conducted and found that the enquiry was not conducted in a fair and proper manner and the same was not in accordance with the principles of natural justice. Hence the management was given opportunity to let in evidence and consequently evidence were let in. Based on the material, the Tribunal found that the management had failed to prove the misconduct on the part of the workman and also rendered a finding that the management had failed to prove that workman was not having adequate interest in the work of the management. With that finding, the Tribunal held that removal of the workman from service was illegal and unjustified and consequently directed reinstatement of the workman into service with full backwages and continuity of service with consequential benefits. 7. It is also relevant to note that while the dispute was pending, an approval application was filed by the management under Section 33(2)(b) of the Industrial Disputes Act, 1947 and the same was dismissed by the Tribunal vide order dated 07.05.1997. Placing reliance on the above subsequent event and following the judgment of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Ltd. Vs. Ram Gopal Verma & Ors. AIR 2002 SC 6