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2007 DIGILAW 1922 (DEL)

Management of I. T. D. C. v. Rati Ram

2007-11-26

MUKUNDAKAM SHARMA, SANJIV KHANNA

body2007
ORDER 1. The present appeal is directed against the order dated July 5, 2007 passed by the learned single Judge disposing of the writ petition filed by the respondent-workman with certain directions. 2. The learned single Judge has upheld the order passed by the appellant pursuant to the directions given by the Tribunal to the Management for constituting another Disciplinary Authority to award appropriate punishment after reconsidering the entire case. 3. However, in the said order, learned single Judge has referred to the earlier order dated August 27, 2002 passed by the Labour Court setting aside the penalty of dismissal of service of the workman imposed by the Management on account of the bias of the Disciplinary Authority with a further direction giving liberty to the Management to re-consider the appropriateness of the penalty to be inflicted on the Workman by keeping in mind the punishment imposed on the co-accused of the respondent herein in the departmental enquiry. The effect of the aforesaid order was to set aside the order of dismissal of service of the workman passed in 1980 so as to enable the Management to take disciplinary action against the workman. The workman, therefore, continued to remain in service and employee of the appellant, until and unless an appropriate order was passed dispensing with his services. 4. Considering the said facts, in the impugned order, the learned single Judge has directed for payment of 50% back wages to the workman on the last salary with effect from December 10, 1980 to February 18, 2003. The aforesaid part of the order passed by the learned single Judge is challenged before us by the appellant by filing the present appeal. It is submitted that the Labour Court had not passed any direction for reinstatement of the workman in service but had only given liberty to the Disciplinary Authority to pass necessary order of penalty on the workman keeping in view the misconduct that he might have committed. It is submitted before us that the order passed by the Labour Court was misinterpreted by the learned single Judge, when he held that it would be a case of deemed reinstatement of workman in service. 5. It is submitted before us that the order passed by the Labour Court was misinterpreted by the learned single Judge, when he held that it would be a case of deemed reinstatement of workman in service. 5. We are however, unable to accept the aforesaid submissions of the learned Counsel for the appellant as in our considered opinion when the penalty of dismissal from service of the workman was set aside by the Labour Court, necessary implication thereof is that the workman was treated as continuing to be in service of the appellant, the order bringing an end to the employer and employee relationship having been set aside. Unless and until the workman was reinstated in service, the appellant had no jurisdiction and right to take any disciplinary action against him. Accordingly, the effect of the order dated August 27, 2002 was that the workman was deemed to be in service so as to enable the appellant to take disciplinary action against the workman. Such action was taken by the appellant by re-constituting the Disciplinary Authority and passing of order of penalty against the workman subsequent thereto. When the order dated August 27, 2002 setting aside, the order of dismissal was passed, the workman must be held to be an employee of the Management, so as to enable the Disciplinary Authority to take action against the delinquent employee. The appellant thereafter was required to pass necessary orders in terms of the Service Rules for the period between December 10, 1980 till February 18, 2003. This has not been done. 6. In that view of the matter, we find that the submission made by the learned Counsel for the appellant that the Management was not required to make any payment of salary to the workman, as there was no such order by the Labour Court is misconceived. Even if there is no order passed in that regard by the Labour Court, the same shall have to be read in light of the "terms of the reference", which required the Labour Court to express its opinion on the question of further reliefs, if the termination was set aside. The order of grant of 50% back wages as ordered by the learned single Judge is in order to ensure equity and justice, therefore, we find no reason to take a different view than what is taken by the learned single Judge. 7. The order of grant of 50% back wages as ordered by the learned single Judge is in order to ensure equity and justice, therefore, we find no reason to take a different view than what is taken by the learned single Judge. 7. The appeal has no merit and is dismissed. In view of the aforesaid decision, application bearing CM. No. 16126/2007 for condonation of delay also stands disposed of.