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2013 DIGILAW 549 (SC)

Delhi Transport Corporation v. Ramesh Chander

2013-05-06

RANJANA PRAKASH DESAI, S.A.BOBDE

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ORDER : 1. Delay condoned. These petitions are directed against judgment dated 11.5.2012 of the Division Bench of the Delhi High Court dismissing the Letters Patent Appeals filed by the petitioner against the order passed by the learned Single Judge, who declined to modify the orders passed under Section 17-B of the Industrial Disputes Act, 1947 (for short, the Act'). 2. While the respondents were working as drivers in the employment of the petitioner, departmental enquiries were held against them on the charge of having collected fare without issuing tickets to the passengers. The enquiry officer returned the finding of guilty and by relying upon the same, the Competent Authority dismissed the respondents from service. 3. On a reference made by the appropriate Government under Section 10(1)(c) of the Act in the case of Ramesh Chander, the Labour Court substituted the punishment of dismissal with stoppage of four increments and directed his reinstatement with 50% backwages. In the case of Ramesh Chand, the Labour Court ordained reinstatement of the respondent with full back-wages. 4. The High Court entertained the writ petitions filed by the petitioner against the awards of the Labour Court and stayed implementation thereof. After sometime, the respondents filed applications under Section 17-B of the Act, which were allowed and direction was given for payment of last drawn wages or minimum wages till the disposal of the writ petitions. 5. Soon after passing of orders by the High Court, the petitioner applied for modification thereof on the ground that the respondents had attained the age of retirement. The learned Single Judge dismissed the applications by observing that there was no ground to review the direction for payment of wages in terms of Section 17-B. 6. In the Letters Patent Appeals filed by the petitioner it was claimed that the age of superannuation of the drivers is 55 years and, as such, the respondents cannot claim continuance in service beyond 55 years. It was also pleaded that the respondents are not entitled to the benefit of Section 17-B of the Act after the age of superannuation. In the Letters Patent Appeals filed by the petitioner it was claimed that the age of superannuation of the drivers is 55 years and, as such, the respondents cannot claim continuance in service beyond 55 years. It was also pleaded that the respondents are not entitled to the benefit of Section 17-B of the Act after the age of superannuation. The Division Bench of the High Court took cognizance of Office Order No.99 dated 4/7.10.1963 by which the age of retirement of the employees was raised from 55 years to 58 years with certain conditions qua drivers, who were in the employment of the petitioner and the fact that the respondents were not subjected to medical test and held: " The age of retirement is not 55 years. It is 58 years. Though, in case of a driver such age of retirement comes with the condition of his being found medical fit in every respect. To put it otherwise, a driver has right to continue up to the age of 55 years and thereafter, he would get the benefit of enhanced age of superannuation from 55 years to 58 years subject to fulfillment of the conditions of medical fitness for which examination can be conducted every year. Therefore, it is not that the age of superannuation is 55 years which was in fact raised to 58 years vide Resolution dated 5.9.1963 but this benefit of enhanced 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 superannuation from 55 to 58 years cannot be denied. (9) Beyond 58 years a driver of DTC or any other employee, has no right to seek extension. It is the discretion of the competent authority which may exercise it by a general or special order and subject to such conditions as the competent authority may specify for retention of service of any employee or 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 conclusion that the age of superannuation of a driver is 58 years. We say at the cost of repetition that vide resolution no. Therefore, from 58 to 60 years, there is no right of any such extension. (10) The aforesaid discussion lead us to the conclusion that the age of superannuation of a driver is 58 years. We say at the cost of repetition that vide resolution no. 450, this age of superannuation was raised from 55 to 58 years. It is not that the age of superannuation was maintained as 55 years in case of drivers but extension was to be given in specific cases. On the 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 Industrial 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. Because of this reason the workman could not get back to his job. However, the DTC very well knew the existence of provision of Section 17B of the Act as per which during the pendency of the writ petition the workman could get the wages in terms of the said provision in case he is unemployed. It was, therefore, for the DTC to conduct medical examination, in case the DTC found doubt in the medical health of the respondent workman which could have determined as to whether as on 4.10.2006 and thereafter on 4.10.2007 and 4.10.2008 the respondent workman was medically fit or not. This medical examination is to be done by the Medical Officer/Officer of the DTC. Therefore, it was for the DTC to call upon the workman to undergo this medical examination. If it is not done, the workman cannot be blamed therefor and there cannot be any presumption against the workman to the effect that he was not medically fit in every respect. Therefore, it was for the DTC to call upon the workman to undergo this medical examination. If it is not done, the workman cannot be blamed therefor and there cannot be any presumption against the workman to the effect that he was not medically fit in every respect. For the nonaction of the DTC in doing so would amount to giving advantage to the workman by the DTC for its own lapse/inaction. Therefore, in these cases, we have to presume that the workmen were enjoying robust health which could have given them the benefit of raised age of superannuation of 58 years. (11) We may also point out that once the Award is passed by the Industrial Tribunal holding that dismissal from service was unjustified or illegal the workmen would be deemed to be in service. It is only because of the stay order passed by the High Court in the writ petition that he is precluded from getting the benefit of the Award and from performing his duties as a driver." In our view, the reasons recorded by the High Court for dismissing the applications filed by the petitioner for modification of the orders passed under Section 17-B of the Act and the Letters Patent Appeals are legally correct and the impugned judgment does not call for interference under Article 136 of the Constitution. The special leave petitions are, accordingly, dismissed. Special Leave Petitions dismissed.