Delhi Transport Corporation v. Ramesh Chand

IN THEHIGH COURTOFDELHIAT NEW DELHI LPA No.89 OF 2012 LFANoJ^OFlOlZ LPA No.174 OF 2012 % Judgment Reserved nn: 20.4.2012 Judgment Delivered on: 11.5.2012. LPA 89 OF 2012 DELHITRANSPORTCORPORATION Through : RAMESH CHAND LPA 191 OF 2012 VERSUS Through: DELHITRANSPORTCORPORATION Through : VERSUS RAMESH CHANDER Through: LPA 174 OF 2012 DELPIITRANSPORTCORPORATION LPAsNo.89/2012, 191/2012,174/2012 . . . APPELLANT Mrs. Avnish AhLwat Avith Ms. Urvashi Malhotra and Mr. Nitish Kumar, Advocates. ... l^SPONDENT Ms. RashmiB. Singh,Advocate. . . . APPELLANT Mrs. Avnish Ahlawat with Ms. Urvashi Malhotra and Mr. Nitish Kumar, Advocates. ...RESPONDENT Ms. RashmiB. Singh,Advocate. . . . APPELLANT I'age 1 of 15 Through : Mr. Anand Nandan, Advocate. VERSUS SURESH CHAND .•• RESPONDENT Through: Mi". N.K. Jha, Advocate. CORAM HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIXO^l, ACTING CHIEF JUSTICE;

¶1All these appeals raise a common question of law, which is quite important as this issue keeps recurring. The issue is;

(l)What is the age of retirement of a driver working in Delhi Transport Corporation (DTC)? Incidental question would be as to whether a driver who is dismissed from service and the dismissal is held to be unjustified and illegal by the Labour Court/Industrial Tribunal and against that Award a writ petition is pending, how the case of extension of service would be determined having regard to the provision relating to the age of retirement?

¶2All these cases pertain to driverswhose services were terminated by the appellant(hereinafterreferredto as the DTC). In all tliesecasesAwardshave been passedin favourof these driversholdingthe terminationbad in law and challenging those Awards, writ petitions fi4ed by the DTC are pending. The applicationswere preferred by the worlmienunder Section 17B of the Act in LPAsNo.89/2012, 191/2012, 174/2012 Page of 15 ]0 their respectivewrit petitionsin which orders under Section 17B of the Act have been passed. It is tiie common case of the parties tliat the age of superannuation is governed by DRTA (Conditions of Appointment & Service) Regulations, 1952.

(2) Forthe sake of convenience,wetakenote of facts in LPA 89 of 2012.

(3) In this case. Award dated 12.8.2005 was passed by tlie Industrial Tribunal-II granting reinstatement in service with full back wages, continuity of service and consequential benefits to the woiianan. Challenging this Award, the DTC has filed Writ Petition (C) 16788/2006. During the pendency of this writ petitionthe worlaiianfiled applicationunder Section 17B of the Act in which orders dated 13.8.2010 were passed allowing that applicationand directing the DTC to pay to the woiianan the last drawn wages/minimumwages, whichever is higher on or before 10^'^ of every month. The DTC was directed to pay the arrears of wages to the worlaiian from the date of passing of the Award up to the date of disposal of the application under Section 17B of tlie Act, within four weeks.

(4) On 7.11.2010the DTC moved applicationfor modificationof the order stating that the woiianan had already attained the age of 55 years on LPAsNo.89/20I2, 191/2012, 174/2012 l>agG3ofl5

4.10.2006, which accordingto the DTC is age of superannuation for drivers It was contendedthat the worlcmenwas not entitledto any benefit of wages under Section 17B of the Act after 4.10.2006. Modificationwas thus sought of the earUer order dated 13.10.2010by contendingthat the worlaiiencould get the wages from 12.8.2005to 4.10.2006when he attainedthe age of 55 years whichaccordingto the DTC is the age of superannuation.The normal age of retirementof employees of DTC earlier was 55 years which was raisedto 58 years subjectto certainconditions. However, in case ofdrivers, it was decidedthat the driversof DTC shall get the benefitof the enlianced retirementage subjectto theirbeingfound fit in everyrespectafterathorough medicalexaminationby the MedicalOfficers/Officersofthe DTC everyyear afterthey had attainedthe age of 55 years. Further,as per Regulation10 of DRTA, Regulations,1952, the competentauthorityat its discretion could authorizeby a general or special order and subject to such conditionsas it may specify,the extensionin service of any employeeor class of employees up to the age of 60 years subject to the condition that the extension shall be from year to year. Office Order No. PLD-l-3(102)/63/l1528 dated 4/7-10-1963 was issued in this behalfwhich explains the,aforesaidprovision and operative portion thereof is as under LPAsNo.89/2012, 191/2012, 174/2012 "DELm TRANSPORT UNDERTAKING . (OF THE MUNICIPAL CORPOI^TION OF DELI H) SCINDIA HOUSE, NEW DELHI. No. PLD-l-3(102)/63/11528 Dated:4/7-l0-1963 Office Order No.99 V-In accordance with tlie provisions of Regulation 10 of the D.R.T.A. (Conditions of Appointment & Service) Regulation 1952 as framed by the erstwhile D.R.T.A. which are still in force in terms of Section 516

(2) (a) of the D.M.C. Act, the employees of this Undertaking are to retire on attaining the age of 55 years provided their services are not otherwise terminated earlier. The Municipal Corporation of Delhi, vide its resolution No. 450 of its meeting held on 05.09.1963 has raised the age of superamiuation from 55 years to 58 years in rcspcct of the employees of the Undertaking subject to the following terms and conditions.

(a)

(b) ©

(d)

(e)

(f) The drivers of the D.T.U. shall get the benefit of the enhanced retirement age subject to their being found fit in every respect after a thorough medical examination by the Medical Officer/Officers of the D.T.U. every year after they have attained the age of 55 years. The first examination shall be carried out immediately after or before they have attained the age of 55 years. If as a result of such medical examination they are found unfit for ftiither service, they v/ould be retired from the service of the Undertaking without any notice. Regulation 10 of the D.R.T.A (Conditions of Appointment & Service) Regulations, 1952 referred to above provides that competent authority at its discretion could authorize by a general or special order and subject to such conditions as he may specify the retention in service of any employee or class of employees upto the age of 60 years subject to the condition that the extension shall be from year to year. In view of the above decision, the appointing authority shall now be LPAsNo.89/2012, 191/2012,174/2012 I'ageSonii |3 competent to authorize the retention in service of any officer or employeeupto the age of 60 years after he has attainedthe age of 58 years subjectto his being found fit after throughmedicalexamination. The extensionshall be from year to year or for such shorterperiod as may be determinedby the appointingauthority. The existingprovision for prematureretirementofemployeesand officerson medicalgrounds beforethey attainthe normal age of retirementwill remain unaltered."

(5) Based on the aforesaidprovisionsthe stand taken by the DTC is that the age of superamiuationis 55 years and thereaftera driver can continue only if he is medicallyfound fit and in order to determinethat a medical examination is to be conducted every year and on the basis of medical examination,yearly extensionupto the age of 58 years is granted. Beyond 58 years, it is left to the discretionofthe competentauthorityto extend the age of superannuation,which action has to be on the basis of his medical fitness. It was thus arguedthat a driverdoes not have any rightto go beyond 55 years and in these cases when the woiiaiienhad attained the age of 55 years they were out of service. Because of this reason, no medical examinationwas conductedand for the purposeofSection 17B ofthe Act, it is only upto the age of 55 years, that the benefitcan be grantedand not beyond. Referencewas made to certainjudgmentsof this Court, which we shall discuss at the appropriate stage. Submission of the respondents woiianen,on the otherhand was that they had rightto go up to the age of60 LPAs No.89/2012 , .191/2012, 174/2012 I'age 6 of 15 years and if tlie DTC had not conducted medical examination it was not their fault. It was further submitted that as per the plain language of Section 17B of the Act, the orders passed in such application would enure to the benefit of worlanan till the pendency of the writ petition irrespective of the fact that an employee had attained the age of superannuationin the meantime and therefore,as to what was the age of retirement would be of no significance.

(6) We have givenourdue considerationto the aforesaidsubmissionof the learned counsel for DTC as well as counsel who appeared for these woiiaiien.

(7) The question which arises in these cases has been foiinulated in t)ie beginning of thisjudgment itself WeAvouldnow like to answer the same. Re; Age of Superannuation of a Driver of DTC

(8) We have already reproduced the provision regarding the age of superannuation.It is clearfrom the abovethat vide resolution450 passedby the MCD on 5.9.1963 (at the time when the DTC was laiown as Delhi TransportUndertaking and was under the MCD), the age of superannuation of all these employeeswas raised from 55 to 58 years. These employees LPAsNo.89/2012 , 191/2012, 174/2012 Page7 of15 u lb would include drivers as well. However, in case of drivers, a condition was imposedthat they will get the benefit of enliancedretirement age subject to their being found medically fit after a thorough medical examination by the' Medical Officer/Officer of the DTC every year, after they have attained the age of 55 years. Thus, there would be an examinationat the stage when a driverattainsthe age of 55 years and if he is found medicallyfit, he will be allowed to continue for another year till the age of 56 year. When he attains the age of 56 year, there would be another examination and on finding him medically,fit, he would be allowedto work for anotheryear again when he attainsthe age of 57 years he wouldbe subjectedto medicalexaminationand once he is found medically fit in eveiy respect, such driver will be allowedto work up to the age of 58 years. What follows from the above; The age ofretirementis not 55 years. It is 58 years. Though, in case of a driver such age of retirement comes with the conditionof his being found medicalfit in every respect. To pat it otherwise,a driverhas rightto continue up to the age of 55 years and thereafter,he wouldgetthe benefitof enhanced age of superannuation from 55 years to 58.years subject to fulfillmentofthe conditionsofmedicalfitness for whichexaminationcan be LPAsNo.89/2012,191/2012,174/2012 PagcSoflS conducted every year. Therefore, it is not that the age of superamiuation is 55 years which was in fact raised to 58 years vide Resolution dated 5.9.1963 but this benefit of enlianced age of superannuation is to be given on fulfillment of the aforesaid conditions. As a corollary what follows is that in case he is found medically fit in every respect, the benefit of raised age of superamiuation from 55 to 58 years cannotbe denied.

(9) Beyond58 yearsa driverof DTC or any otheremployee, has no right to seek extension. It is the discretion of the competent authority which may exerciseit by a generalor specialorderand subject to such conditions as the competentauthoritymay specifyfor retentionof serviceof any employeeor class of any employee up to the age of 60 years and the extension is on an yearly basis. Therefore,from 58 to 60 years, there is no right of any such extension.

(10) The aforesaid discussion lead us to the conclusionthat the age of superannuationofa driveris 58 years. We say at the cost ofrepetitionthat vide resolutionno. 450, this age of superannuationwas raised from 55 to 58 years. It is not that the age ofsuperamiuationwas maintainedas 55 years in case of drivers but extension was to be given in specific cases. On the LPAsNo.89/2012, 191/2012, 174/2012 contrary, age was increased to 58 years and benefit was subject to the fulfillment of the condition that the driver is medically fit. With this, we come to the incident question namely what would be position in the instant cases where medical examination has not been conducted? As already noted from the facts of LPA 89 of 2012, that when the hidustrial Tribunal rendered its Award dated 12.8.2005 the workman was less than 55 years of age. He attained the age of 55 on 4.10.2006. Though as per the Award of the Labour Court he was entitled to reinstatement in service with full back wages, continuity of service and consequential benefits, the DTC thus, did not accept this Award and challenged this Award by filing writ petition. In the said writ petition stay of reinstatement was granted. Becauseof this reasonthe worlanancould not get back to his job. However,the DTC very well Imew the existenceof provisionof Section 17B ofthe Act as per whichduringthe pendencyofthe writ petitionthe workman could get the wages in terms ofthe said provisionin case he is unemployed. It was, therefore,for the DTC to conductmedical examination,in case the DTC found doubt in the medicalhealthof the respondentworlananwhich could have determined as to whether as on 4.10.2006 and theieaftei on

4.10.2007and 4.10.2008the respondentworlananwas medicallyfit or not. LPAsNo.89/2012, 191/2012, 174/2012 I'age 10 of 15 This medicalexaminationis to be done by the MedicalOfficer/Officerol the DTC. Therefore,it was for the DTC to call upon the workman to undergo this medicalexamination. If it is not done, the worlanancannot be blamed therefor and there camiot be any presumptionagainst the worlanan to the effectthat he was not medicallyfit in every respect. Tor the non-actionof the DTC in doing so would amountto giving advantageto the workmanby the DTC for its own lapse/inaction.Therefore, in these cases, wc have to presume that the workmen were enjoying robust health Avhich could have giventhemthe benefitofraisedage ofsuperannuationof58 years.

(11) We may also pointout that once the Award is passedby the Industrial Tribunal holding that dismissal from service was unjustifiedor illegal the worlanenwould be deemedto be in service. It is only because ofthe stay orderpassedby the High Courtin the writpetitionthat he is precludedfrom gettingthe benefitofthe Awardand from performinghis dutiesas adriyer.

(12) We thus answerthe questionholdingthatthe age ofsuperannuationof the worlanen would be 58 years.

(13) Learnedcounselfor theDTC hadreferredto few judgmentswhichmay not be of any help to tlie DTC in the instant case. Firstjudgmentis ol a LPAsNo.89/2012,191/2012,174/2012 DivisionBenchjudgmentof this Court dated 9.1.2009 in batchof LPAs and Writ Petition with lead case as Delhi Transport Corporation Vs. Shri DItarant Pal, Ex. Driver, LPA 1214/2007. In these cases, the age of superannuationof the worlananis held as 55 years holdingthat their further extensionin serviceto 60 years is not a matter of right but subjectto their medical fitness for a job of driver on year to year basis. However, this judgmentwas rendered in the context of Section 47 of the Persons Math Disabilities(EqualOpportunities,ProtectionofRights and Full Participation) Act, 1955.Inall thosecasesthe driverhad sufferedseriousphysicaldisability even beforereachingthe age of 55 years. In normal course becauseof such disabilitywhen they v/ere not in a positionto performthe duties of a driver they could have been medically ceased out Irom the service. However, becauseof Section47 oftheDisabilityAct, they were continuedin serviccas this provisionmandates the employerto continueeven such an employeein service by pi'ovidinganother suitablejob in which such an incapacitated employee can perform dependingupon his disability. So much so, this provision goes to the extent that even if the disabilitysuffered by an employeeduring his serviceis such that he is in apositionto perfoim any duty till he is continuedin serviceand is to be paid salary in the same pay LPAsNo.89/2012,191/2012,174/2012 yo scale which he was enjoying as driver. For such drivers, no medical examination on attaining their age of 55 years was even necessary. In as much as, they were declared medically unfit to perform the duties of driver even before they attained the age of 55 years. Those cases, therefore, did not pose any problem as they were not entitled to enliance the age of superamiuation to 55 to 58 years at all.

(14) It is trite law that a judgmentmust not be read as a statute it must be understood in the context of facts involved therein and points required to be decided. The aforesaid judgment, therefore would not be of any avail to the DTC.

(15) AnotherDivisionBench decisiondated 23.9.2008in LPA 256/2008 titledDTC Vs. Yashpal,ex driver,was pressedby the learnedcounselfor the DTC. That was a case under Section 17B of the I.D. Act. The Court held that the said workman had attainedthe age of55 years on 19*^'^ July, 2003 and no relief under Section 17 B of the I.D. Act could be granted to him beyond that date. Interestingly,inthatcase Awardwas passedon 6.10.2004whereas before passing of the said Award the workman had attained the age of 55 years on 19^'' July, 2002 as the Award came to be passed later,the question of him being medicallyexaminedon 19.7.2003 did not arise"in as much as LPAsNo.89/2012, 191/2012, 174/2012 PagG 13 of 115 on that date he was out ofsei-viceand the case was still pendingbeforethe LabourCourt. Moreover, he was asked to appearbeforethe MedicalBoard sometimein March,2008 and on 21.3.2008he was held to be unfit for duty. It was in these circumstances,while denying the benefit of Section 17 B of the Act the court observedthat he can avail his remedy by institutionof appropriateproceeding. As is clearfrom the following: "5. The fact of the matter is that as on the date of Award, i.e. 6^' October, 2004, the respondentwas no longer in service. Hehad superannuatedon 19^''July,2003. While it is open to the respondent to institute appropriate proceedings questioning the decision of the DTC dated 2r' March,2008 not to continuehim in service,it is clear that no reliefcould have been grantedto the respondent under Section 17B ID Act."

(16) We wouldalso like to comment that in brieforderoftwo pagespassed in the saidLPA the Court did not go into the questionas to what was the age of superannuation and proceeded on the assumption that the age of superannuation was 55 years. This position was accepted by the counsel for the worlanan as well and therefore, the Court proceeded on that basis and for this reason, there is no reference to the provision regarding the age of superamiuation which we have discussed in detail in this order. Therefore, LPAsNo.89/2012, 191/2012, 174/2012 Page 14 of is this decisioncannotbe treatedas an authorityon the issuenamelywhatwould be the age ofsuperannuationhavingregardto the provisionsof DRTAAct.

(17) To sum up, the woiianenin theseappealsshall be entitledto the benefit of Section 17B of the I.D. Act till they attainedthe age of 58 years. The benefitof Section17B orderspassedin their cases shall be extendedto them up to that date.

(18) SinceinLPA 89/2012 that is precisely the view taken by the learned Single Judge, we uphold that order and dismiss the said LPA. In other two LPAs, benefitgivenby the learnedSingleJudgeis even beyondthe age of58 yeais, to that extent those orders are set aside and these appeals are partly allowed.

(19) There shall be no order as to costs. MAY 11,2012 skb LPAsNo.89/2012, 191/2012, 174/2012 ACTING CHIEF JUSTICE (RAJIV SAHAIENDLAW) JUDGE