S. Ravindra Bhat, J.:--

1. This petition under Article 226 of the Constitution of India questions an order dated 23.03.2012 of the Central Administrative Tribunal (hereafter ‘the Tribunal’) in O.A. No. 3579/2011 and the order dated 12.05.2011 of the Delhi Transport Corporation (hereafter ‘DTC’) to the extent that it denies the petitioner notional fixation of pay and increments and counts the period out of employment as not being in service, for the purposes of pension and terminal benefits. The question requiring decision is whether an employee reinstated to his position is entitled to benefits of notional pay fixation, increments etc. and also additionally, if his services are to be counted for the purpose of pension and terminal benefits for the intervening period (between the date of termination order and the date of reinstatement).

2. The facts are that the petitioner is an employee of the DTC. He was removed from service by an order dated 19.01.1995 on allegations of misconduct. Aggrieved, he raised an industrial dispute, which led to the Labour Court, by its Award dated 02.08.2010, setting aside the enquiry proceedings as well as the removal order. The DTC was directed to reinstate the petitioner with continuity of service but without back wages.

3. The respondent DTC, issued a letter/order dated 12.05.2011 reinstating the petitioner without back wages. The order at the same time denied him the benefits of notional pay fixation, promotion, ACP, and increments. It also stated that the services of the petitioner were not to be counted for the purposes of pension and terminal benefits for the intervening period. Further, the pay of the petitioner was fixed in terms of the last pay drawn when his services were terminated. The petitioner joined the services upon receiving the said letter which withheld the pension and terminal benefits etc.

4. The petitioner felt aggrieved and approached the Tribunal, by filing an application, O.A. No. 3579/2011. The Tribunal by its order dated 23.03.2012 disposed of the application stating that the petitioner should invoke Section 29 of the Industrial Disputes Act, 1947 to seek appropriate remedy instead of approaching it. The review application against this order by the respondent was dismissed by the Tribunal on 05.09.2012.

5. In order to understand the issues involved, it is necessary to consider the award of the Labour Court dated 02.08.2010. The relevant portion has been reproduced as under;

“In this peculiarity of the situation, I do not find any evidence to fasten the charges as proved against the workman for the reason that the key witness to the theft namely Raj Bahadur, is not examined. The corroborative evidence of the other eye witnesses namely Moti Ram and Om Prakash, are also not forthcoming. In this context, I have no other alternative than to hold the charges having not been proved. In the result, the workman is entitled for reinstatement.” [emphasis supplied]

Further the Labour Court considered the aspect of award of grant of back wages to the petitioner. While placing reliance on the decisions of Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar, 2010 LLR 677 which followed Jagbir Singh v. Haryana State Agricultural Marketing Board (2009) LR 1254 the Labour Court held that:

“Reinstatement with back wages is not automatic and may be wholly in-appropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure.”

Applying this to the petitioner the Ld. Labour Court held that;

“12. In the present case where the enquiry is vitiated on the ground of the technicalities of the confession statement of the workman. The management could have proved the theft before this court by examining the proper witnesses. The order of termination is being interfered only for want of evidence before the court. Several years have passed after the alleged incident. Considering the peculiarity of the situation, I do not find any scope

Click Here to Read the rest of this document