Rajiv Sahai Endlaw, J.@mdashThe petitioner DTC in this writ petition impugns the award dated 19th May, 1990 of the Labour Court on the
following reference:
Whether the termination of services of Shri Tej Singh is legal and/or justified and if not, to what relief is he entitled and what directions are
necessary in this respect?
holding the termination to be violative of Section 25F of the ID Act and directing the petitioner DTC to reinstate the respondent No. 3 workman
with full back wages in the scale of 260-400/equivalent revised scale on the post of conductor or in some other post in the said scale.
2. This Court vide ex parte order dated 2nd May, 1991 while issuing Rule in writ petition stayed recovery by coercive process from the petitioner.
On application u/s 17B of the ID Act being filed by the respondent No. 3 workman vide order dated 26th May, 1994 and as clarified on 8th May,
2000 payment at the rate of last drawn wages was directed / ordered.
3. The Labour Court has found that the respondent No. 3 workman was appointed as a conductor with the petitioner DTC w.e.f. 20th June, 1981
on daily wages; that he became a regular employee w.e.f. 20th December, 1981; that he met with an accident (when off duty) on 14th January,
1982 in which his leg was fractured; that he remained on leave from 15th January, 1982 to 11th June, 1982 without pay; that thereafter he was
examined by the Medical Board of the petitioner DTC and given three months light duty; that he was given duty at the post of TTC which post
then had the same pay scale as of a conductor; however subsequently the pay scales of the post of TTC became higher than that of a conductor
and consequently the respondent No. 3 workman was removed from the said post; that the respondent No. 3 workman was again examined by
the Medical Board but found unfit to work as a conductor owing to shortening of his leg and difficulty in boarding and alighting from the bus; that
the petitioner DTC offered to the respondent No. 3 workman the post of a peon which is below the post of a conductor but the respondent No. 3
workman did not opt for the same; accordingly the petitioner DTC vide order dated 21st June, 1983 terminated the services of the respondent
No. 3 under Clause 9 (a)(i) of the DRTA (Conditions of Appointment & Service) Regulations, 1952.
4. The Labour Court in the award has noted that the petitioner DTC inspite of opportunities failed to produce any evidence and also failed to
address arguments. The Labour Court has held that it being not in dispute that the respondent No. 3 workman had worked for a period of more
than 240 days in a year, was required to be given notice and retrenchment compensation in terms of Section 25F of the ID Act; that the same
having not been done, the termination is illegal. It was also held that the respondent No. 3 workman had disputed the fact that he was medically
unfit to perform the duties of conductor and had stated so on oath; the petitioner DTC in the cross examination had not challenged the same though
had suggested that the respondent No. 3 workman''s leg had been shortened and the respondent No. 3 workman used to face difficulty in
boarding and alighting from the bus. The Labour Court held that to be not sufficient to conclude that the respondent No. 3 workman could not
perform the duties of a conductor efficiently and it was for the petitioner DTC to produce medical evidence as well as other evidence to satisfy that
the respondent No. 3 workman was unable to perform duties of a conductor. The Labour Court also held that the petitioner DTC ought to have
given further opportunity to the respondent No. 3 workman to exercise the option of accepting the job as a peon. The petitioner DTC was also not
held justified in offering a Class IV post of a peon to the respondent No. 3 who was employed in a Class III post as a conductor.
5. The counsel for the petitioner has raised only one argument. A copy of the letter dated 19th June, 1982 of appointment of the respondent No. 3
w.e.f. 20th December, 1981 has been handed over in the court. One of the conditions in the said letter is as under:
His appointment is purely temporary. He will be on probation for a period of one year. The period of probation can be extended up to two years
by this Corporation, if considered necessary. During the probationary period his services shall be liable for termination at any time without notice
and without assigning any reason therefor. He would be considered as having completed the period of probation satisfactorily only when a
notification to this affect is issued from this office.
The counsel contends that as on 21st June, 1983 the respondent No. 3 workman was within the period of probation only and thus the termination
of his services did not attract/invite Section 25F of the ID Act. It is urged that the Labour Court in the award impugned in this petition has totally
ignored the said aspect and thus misdirected itself.
6. It was enquired from the counsel whether the letter, copy of which has been handed over in the court, was filed before the Labour Court. The
counsel has fairly stated that he is unable to answer. Though I find that a ground in this respect has been taken in the writ petition but no copy of
the said letter was filed along with the writ petition. Inspite of the writ petition having remained pending for the last nearly 20 years, the file of the
Labour Court has not been requisitioned in this Court till now. Considering the long period for which the matter has remained pending and the
probability of the record being not available with the Labour court itself it was not deemed expedient to adjourn the matter. The counsel for the
respondent No. 3 workman stated that he has some copies of the record of the Labour Court and which were handed over in the court and taken
on record.
7. Finding no discussion whatsoever in the award on the aforesaid plea of the counsel for the petitioner DTC, the pleadings before the Labour
Court were perused. The petitioner DTC in its reply has pleaded that the services of the respondent No. 3 workman were terminated under
Clause 9(a)(i) of the Regulations and which has been noticed in the award also. However, the Labour Court has not discussed as to what the
Regulation 9(a)(i) is. Another counsel for the DTC present in court during the hearing handed over a copy of the said regulations. From a perusal
thereof, Rule 9(a)(i) is found as under:
9. Termination of Service: (a) Except as otherwise specified in the appointment orders, the services of an employee of the Authority may be
terminated without any notice or pay in lieu of notice:
(i) During the period of probation and without assigning any reasons thereof.
8. From the aforesaid it is clear that the order of termination was treating the respondent No. 3 workman as serving the period of probation. It was
enquired from the counsel for the petitioner as to whether there is any document to show that the period of probation which was for one year from
20th December, 1981 to 19th December, 1982 was extended for another year. The counsel again expresses helplessness but states that even if
there was no order of extension of probation, as per clause aforesaid of the appointment letter, probation would be treated as satisfactorily
completed only when a notification to that effect is issued by the petitioner DTC. It is contended that no such notification has been issued. The
Supreme Court in Wasim Beg Vs. State of Uttar Pradesh and Others, held that where there is a rule requiring a specific act on the part of the
employer (either by issuing an order of confirmation or any similar act) which would result in confirmation of the employee, in such cases unless
there is such an order of confirmation, the period of probation would continue and there would be no deemed confirmation at the end of
prescribed probationary period.
9. I have again perused the counter affidavit to the writ petition filed by the respondent No. 3 workman. The respondent No. 3 workman therein
has pleaded that the invocation of Regulation 9(a)(i) by the petitioner DTC was a colourable exercise of power. In para 15 of the counter affidavit
it is also pleaded that the respondent No. 3 workman was in the regular appointment of the petitioner but he has not pleaded any notification of
successful completion of probation having been issued. The termination otherwise on 21st June, 1983 is within two years of the start of the
probationary period. I may also notice that it was not the case of the respondent No. 3 workman before the Labour Court that the invocation of
Regulation 9(a)(i) was a colourable exercise of power.
10. From the order of termination having been issued under Regulation 9(a)(i) and from the pleadings aforesaid it can safely be assumed that the
termination was within the probation period and while the respondent No. 3 workman was serving as a probationer. The same would negate the
logic given by the Labour Court of violation of Section 25F. It is the settled law that Section 25F is not applicable to termination of services of a
probationer. Reference in this regard may be made to JagmalRajajinagar Coop. Bank Ltd. v. K. Gururaj, (2001) 10 SCC 681 where the
Supreme Court held that when the dispensation of services is done prior to the probation period coming to an end and in terms of the order of
appointment, the provisions of Section 25F would not be attracted.
11. However the fact remains that the petitioner DTC before the Labour Court failed to take the aforesaid plea expressly and also failed to lead
any evidence or address arguments. The Labour Court cannot thus be faulted much in ignoring the said aspect. The petitioner DTC after pleading
that the termination was under Regulation 9(a)(i) relied more on the respondent No. 3 workman having been given the offer for a lower post and
having declined the same. Again from the pleadings before the Labour Court as well as in the writ petition it stands established that the respondent
No. 3 workman was made an offer of a lower post but declined the same; he insisted on alternative employment at an equivalent post. The
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides for the same. The said Act does not
have retrospective application as held recently by the Division Bench of this Court in Delhi Transport Corporation Vs. Sh. Harpal Singh, and it was
not in operation at the time of the award in the present case. Nevertheless, even prior to the said Act, the DTC had a policy for offering
employment at an equivalent or a lower post to such disabled employees. However the respondent No. 3 workman being a probationer, the
benefit of Section 47 of the said Act cannot be given to him.
12. The reasoning of the Labour Court of the petitioner being not medically unfit is found to be contrary to the evidence of record. The award also
notices and a perusal of the cross examination of the respondent No. 3 workman before the Labour Court also shows that the respondent No. 3
workman did admit the shortening of his leg. The said fact spoke for itself and there was no need for the petitioner DTC to lead any evidence to
prove that such shortening of leg disabled the respondent No. 3 workman from performing the duty of a conductor.
13. Similarly, the Labour Court misread the pleadings and the evidence before it to hold that inspite of refusal by the respondent No. 3 workman
to accept the lower post of peon offered to him, the petitioner DTC ought to have again made the offer to the respondent No. 3 workman.
14. Though on the aforesaid basis the award cannot be sustained but the fact remains that the petitioner DTC failed to present its case properly
before the Labour Court. The age of the respondent No. 3 workman was enquired about during the hearing and he is stated to be 57 years of age
at present. The retirement age of a conductor is informed to be 60 years. He would thus have only about 3 years of service left. No case for
reinstatement at this stage is made out.
15. In the entirety of the facts, it appears that besides the payments u/s 17B already received by the respondent No. 3 workman, the respondent
No. 3 workman should be entitled to some compensation. Considering all the aspects, compensation in the amount of Rs. 75,000/- is found to be
just. The petition therefore succeeds. The award directing reinstatement with back wages and all benefits is set aside and quashed and modified to
an award only for payment of compensation of Rs. 75,000/- besides the payments already received by the respondent No. 3 u/s 17B of the Act
and of which he will not be required to refund any part. The payment as aforesaid be made within six weeks failing which it shall incur simple
interest at the rate of 9% per annum.
The petition is disposed of.
No order as to costs.
