* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No. 16265/2006 % Date of Decision: 20 July, 2009 # Delhi Transport Corporation ..... PETITIONER ! Through: Ms. Mini Pushkarna, Advocate. VERSUS $ Shri Nand Kishore .....RESPONDENT ^ Through: Ms. Rashmi B. Singh, Advocate. CORAM: Hon'ble MR. JUSTICE S.N. AGGARWAL 1. Whether reporters of Local paper may be allowed to see the judgment? YES 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES S.N.AGGARWAL, J (ORAL) This writ petition filed by Delhi Transport Corporation (the petitioner herein) is directed against an award dated 28.11.2005 passed by Mr. O.P. Saini, POLC VII, Delhi directing reinstatement of the workman (the respondent herein) with 75% back wages. 2 During the pendency of the present writ petition, the respondent/workman has been permitted to join duties with the petitioner corporation w.e.f. 23.02.2004 without prejudice to the rights and contentions of the parties. He was permitted to join duties with the petitioner corporation pursuant to an order under Section 17-B passed by this Court. 3 Arguments in the main petition have been heard today. 4 Brief facts of the case relevant for the disposal of this writ petition W.P.(C) No.16265/2006 Page 1 of 4 are that the respondent was appointed as a Conductor with the petitioner corporation w.e.f. 18.07.1982. He was served with a charge-sheet dated 27.10.1993, which is Annexure P-3 at page 42 of the paper book. The charge attributed to the respondent was that he remained absent from duty for 32 days during the period from 01.01.1993 to 30.06.1993 and out of these 32 days, he remained absent for one day unauthorizedly and 31 days leaves were rejected due to various reasons. Domestic inquiry was held against the respondent in which he was found guilty of charges of unauthorized absence leveled against him. The disciplinary authority after taking into account the report of the inquiry officer and other relevant material decided to remove the respondent from service and he was accordingly removed from service of Delhi Transport Corporation w.e.f. 18.07.1994. 5 The respondent, aggrieved by his removal from service of the petitioner, raised an industrial dispute which was referred by the appropriate Government for adjudication to the Labour Court. The Labour Court then presided over by Mr. C.K. Chaturvedi, vide its order dated 29.01.2005 decided the inquiry issue in favour of the workman and against the management. Thereafter, vide impugned award dated 28.11.1995, the Labour Court then presided over by Mr. O.P. Saini answered the reference holding that the respondent is entitled to reinstatement with 75% back wages. 6 Ms. Mini Pushkarna learned counsel appearing on behalf of the petitioner corporation has contended that the court below did not give any opportunity to the petitioner to prove the misconduct of the respondent after deciding the inquiry issue against it. I have gone through the impugned award and perusal of para 13 of the said award at page 35 of the paper book reveals that the opportunity that was given to W.P.(C) No.16265/2006 Page 2 of 4 the management was to lead evidence to show that the workman was gainfully employed from the date of his removal from service. Such an opportunity as is mentioned in para 13 of the impugned award does not meet the requirement of law. The law is well settled that once an inquiry issue is decided by the Labour Court against the management, then the management has to be afforded an opportunity to prove the misconduct against the delinquent employee. This opportunity seems to have not been given by the court below to the management. For that reason, I am of the opinion that the impugned award cannot be sustained in law. The said award suffers from perversity as no opportunity to prove the misconduct of the delinquent employee was given to the management. Under the circumstances, this Court is of the considered opinion that ends of justice shall be adequately met by remanding the case back to the court below for giving an opportunity to the management to prove the misconduct against the respondent and in the meanwhile, direct the petitioner to continue to allow the respondent to work with it without prejudice to its rights and contentions till the dispute is decided afresh by the court below after giving an opportunity of hearing to both the parties. 7 For the foregoing reason, the impugned award dated 28.11.2005 passed by Mr. O.P. Saini, then Presiding Officer, Labour Court VII, Delhi is hereby set aside. The case is remanded back to the court below for fresh decision on merits after giving opportunity of hearing to both the parties. The Court below is directed to decide the dispute afresh as expeditiously as possible preferably within six months to be reckoned from the date given to the parties for their appearance before it. In the meanwhile, the parties are directed to continue with the same arrangement relating to working of the respondent with the petitioner and the same shall be without prejudice to their rights and contentions on merits and will not W.P.(C) No.16265/2006 Page 3 of 4 confer any special equity in favour of the respondent in the event of the petitioner's proving misconduct against him. The parties are directed to appear before the court below for further directions at 2:00 PM on 27.07.2009. 8 This writ petition stands disposed of in terms referred above. The parties are left to bear their own costs. 9 A copy of this order be sent to the Labour Court/ successor court forthwith for information and necessary compliance. JULY 20, 2009 S.N.AGGARWAL, J 'a' W.P.(C) No.16265/2006 Page 4 of 4