DELHI TRANSPORT CORPORATION v. THROIJGH LRS

Through: Ms. Arati Mahajan Shedha, Advocate. VETSUS ja. \J )1, \. AJIT SINGH (DECEASED) TIIROUGH I,RS ..... Respondent CORAM: JUSTICE S. MURALIDIIAR o ORDER 19.07.2011 CM APPL fros. 10073 and 10071 of 2011 (for exemption) Exenption allowed subject to all just exceptions. W.P. (C) Nos.4969 ond 4970 of2077 Poge 7 of 5 Signature Not Verified Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 6*.?'"t '.r - !{ Ci'*; ':-* f' The applications are disposed of. W.P. (C) 4969/2011 & CM No. 10070/2011 (for stav) W.P. (C) 497012011 & CM No. 1.0072/2011 (for stav)

#1. Writ Petition (Civil) No. 4969 of 2011 has been filed by the Delhi 'fransport Corporation ('DTC') challenging an order dated 14'h May 2OI0 passed by the Labour Court in O.P. No. 112000109 disposing of the Petitioner's application under Section 33(2Xb) of the Industrial Disputes Act, 1947 ('ID Act') seeking approval for dismissal of the Respondent workman in view of the fact that it was rendered infructuous since the final Award had been passed by the Labour Court on the same date in ID No. 44/99/2009.

#2. Writ Petition (Civil) No. 4970 of 2011 has also been filed by the DTC to challenge an Award dated 14th May 2010 passed by the Labour Court in ID No. 4419912009 whereby while holding the removal of Respondent from service to be legal, the Labour Court modified the punishment of dismissal from service to that of stoppage of two increments with cumulative effect.

#3. It was submitted that the Labour Court had relied upon an office order dated 8th April 1968 issued by the General Manager, a copy of which had been produced by the authorized representative for the workman before the W.P. (C) Nos.4959 ond 4970 of 2077 *. .f. ll^ Labour Court, to urge that the DTC had decided that for habitual absence from duty without intimation or prior permission the penalty would be stoppage of increment with or without cumulative effect. It was submitted that a copy of such order was not available on the file of the Labour Court and also not available with the Petitioner and therefore could not be relied upon by the Labour Court.

#4. Secondly, it is submitted that the Respondent workman was in fact a habitual absentee having been on leave without pay on several occasions between 1983 and 1992. Consequently, it is submitted that there is no occasion for the Labour Court to modiff the punishment.

#5. Thirdty, it is subrnitted frorn that the operative portion of the Award, it was not clear whether the 50% back wages and all consequential benefits would have to be paid by treating the case to be one of misconduct or otherwise. As regards the order dated 14th May 2010 disposing of the application under Section 33(2Xb) of the ID Act, it is submitted that such application could not be treated as having been rendered infructuous only on the ground that the Award had been passed. It is submitted that said application had to be independently decided on merits by the Labour Court. W.P. (C) Nos.4969 ond 4970 of 2077 Page 3 ol 5 +

#6. Having considered the above submissions of learned counsel for DTC, this Court is not inclined to interfere in the matter.

#7. During the pendency of the proceedings before the Labour Court the Respondent workman expired and his LRs were brought on record' The workman had remained absent for a period of 35 days due to ill health although without prior intimation or permission. The instances of the ,'{.({- Respondent absenting himself from duty between 1983 and 1992 was by and large by way of leave without pay. It is not shown that these were without seeking prior sanction. There were two occasions when he was absent without intimation for which he had been warned and stoppage of one increment without cumulative effect was ordered.

#8. In the circurnstances, it is not possible for this Court to hold that the impugned Award of the Labour Court is perverse warranting interference' \1. Considering that the Respondent workman died leaving behind a widow and that his absence for a period of 35 days was on account of ill health' the substitution of the punishment of dismissal with stoppage of two increments with cumulative effect cannot be held to be unjustified' g.Para2} ofthe impugned Award, which is the operative portion, does not suffer from any ambiguity inasmuch as the punishment of dismissal has Poge 4 of 5 W.P. (C) Nos.4969 ond 4970 of 2077 been substituted by penalty of stoppage of two incretnents with cumulativf/ n\f>t effect. The 50% back wages would obviously be calculated after giving thc effect to the aforementioned penalty. Consequential benefits would be in terms of the rules and regulations of the DTC.

#10. The order disposing of Petitioner's application under Section 33(2Xb) of the ID Act ought to be construed as a refusal of permission when i' viewed in the context of the Award dated 14th May 2010. Consequently, the said order also does not call for any interference. I 1. For the aforementioned reasons, both these writ petitions are dismissed, but in the circumstances. with no order as to c6sts. The pending applications are also dismissed. .Y JULY 18, 2011 aK S. MURALIDHAR. J w.P. (C) Nos.4969 ond 4970 of 2077