Mahabir Prasad v. Delhi Transport Corporation

order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."

¶20The above discussion reveals that there appeared to be no standard pattern of directing how a reinstated employee is to be given the benefit after reinstatement. In Deepali Gundu Surwase(supra), for the first time, the restitutionary principle underlying reinstatement and other benefits was spelt out and a semblance of uniformity was attempted. If that is to be kept in mind, what is apparent in this case is that the petitioner had to battle for over a decade and a half to secure justice. The Labour Court held the enquiry against him illegal; went into the material and found that the charge of misconduct was Page 15 baseless. It consequently directed reinstatement without backwages. Whilst the denial of backwages is not in question, the Award directed continuity of service. If DTC's contention were to be accepted, the petitioner would stand doubly penalized for the delay in securing justice, plainly for no fault of his. The denial of 15 years' salary would result in his denial of pension, or at least a vastly diminished pension, gratuity and other terminal benefits. If these benefits are denied, the direction to grant continuity of service would be a hollow relief. Furthermore, to restore him in the pay scale at the stage of his termination would be to freeze him in a pay scale that is no longer existent, or at least unrecognizable.It is pertinent that a withholding of 2 increments for two years, with cumulative effect has been held to be a major penalty (imposable only after an enquiry) since the increments "would not be counted in his time-scale of pay" in perpetuity. In other words, the clock would be set back in terms of his earning a higher scale of pay, by two scales. See Kulwant Singh v. State of Punjab, 1991 Supp (1) SCC 504. Keeping this in mind, if the petitioner were to be restored in the pay scale at the stage of his termination, it would amount to withholding several increments, and thus be equivalent to imposing a compounded major penalty.

¶21Consequently, it is held that the direction to grant continuity meant that the petitioner had to be given notional increments for the duration he was out of employment, in the grade and the equivalent grade which replaced it later, till he reached the end of the pay scale. Since there is no direction to give consequential benefits, the petitioner cannot claim promotion as a matter of right; it would have Page 16 to be in accordance with the rules. ACP benefits however, should be given. The notional pay fixation would also mean that he would be entitled to reckon the period between his removal and reinstatement as having been in employment for pension, gratuity, and contributions to provident fund etc. This Court directs the DTC to issue an order extending these benefits to the petitioner for the 15 year period between his dismissal in 1995 and his eventual reinstatement in 2011, within eight weeks from today. The writ petition is allowed in these terms; there shall be no order as to costs. S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) JULY 23, 2014 'ajk'

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 14.07.2014 Pronounced on: 23.07.2014 + MAHABIR PRASAD ..... Petitioner Through : Sh. G.S. Charya, Advocate. versus DELHI TRANSPORT CORPORATION ..... Respondent Through : Ms. Avnish Ahlawat, Advocate.. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI MR. JUSTICE S. RAVINDRA BHAT % 1. This petition under Article 226 of the Constitution of India questions an order dated 23.03.2012 of the Central Administrative Tribunal (hereafter 'the Tribunal') in O.A. No.3579/2011 and the order dated 12.05.2011 of the Delhi Transport Corporation (hereafter 'DTC') to the extent that it denies the petitioner notional fixation of pay and increments and counts the period out of employment as not being in service, for the purposes of pension and terminal benefits. The question requiring decision is whether an employee reinstated to his position is entitled to benefits of notional pay fixation, increments etc. and also additionally, if his services are to be counted for the Page 2 purpose of pension and terminal benefits for the intervening period (between the date of termination order and the date of reinstatement). 2. The facts are that the petitioner is an employee of the DTC. He was removed from service by an order dated 19.01.1995 on allegations of misconduct. Aggrieved, he raised an industrial dispute, which led to the Labour Court, by its Award dated 02.08.2010, setting aside the enquiry proceedings as well as the removal order. The DTC was directed to reinstate the petitioner with continuity of service but without back wages. 3. The respondent DTC, issued a letter/order dated 12.05.2011 reinstating the petitioner without back wages. The order at the same time denied him the benefits of notional pay fixation, promotion, ACP, and increments. It also stated that the services of the petitioner were not to be counted for the purposes of pension and terminal benefits for the intervening period. Further, the pay of the petitioner was fixed in terms of the last pay drawn when his services were terminated. The petitioner joined the services upon receiving the said letter which withheld the pension and terminal benefits etc. 4. The petitioner felt aggrieved and approached the Tribunal, by filing an application, O.A. No. 3579/2011. The Tribunal by its order dated 23.03.2012 disposed of the application stating that the petitioner should invoke Section 29 of the Industrial Disputes Act, 1947 to seek appropriate remedy instead of approaching it. The review application against this order by the respondent was dismissed by the Tribunal on 05.09.2012. Page 3 5. In order to understand the issues involved, it is necessary to consider the award of the Labour Court dated 02.08.2010. The relevant portion has been reproduced as under; "In this peculiarity of the situation, I do not find any evidence to fasten the charges as proved against the workman for the reason that the key witness to the theft namely Raj Bahadur, is not examined. The corroborative evidence of the other eye witnesses namely Moti Ram and Om Prakash, are also not forthcoming. In this context, I have no other alternative than to hold the charges having not been proved. In the result, the workman is entitled for reinstatement." [emphasis supplied] Further the Labour Court considered the aspect of award of grant of back wages to the petitioner. While placing reliance on the decisions of Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar, 2010 LLR 677 which followed Jagbir Singh v. Haryana State Agricultural Marketing Board (2009) LR 1254 the Labour Court held that: "Reinstatement with back wages is not automatic and may be wholly in-appropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure." Applying this to the petitioner the Ld. Labour Court held that; "12. In the present case where the enquiry is vitiated on the ground of t