JUDGMENT :

Vinod Goel, J.

The impugned award dated 01.03.2001 passed by the court of learned Presiding Officer, Industrial Tribunal No. III, Delhi ("Industrial Adjudicator") is the subject matter of challenge in this writ petition filed by the petitioner (management) under Article 226 of the Constitution of India.

2. By the impugned award, the premature retirement of the respondent no.1 (workman) was held to be illegal and unjustified. The Industrial Adjudicator directed "that the pre-mature retirement of the workman is illegal and unjustified and he is entitled for his reemployment with continuity of service with full back wages at the rate which he was drawing as driver and he will be entitled for the post which he can perform in alternative post of driver."

3. Admittedly, the workman was appointed by the management as a driver on 27.10.1980. He sustained injuries on 22.09.1986. Para no.3 of the impugned award records that "However, it is not disputed that workman has sustained the injury during the course of his duty. The workman was examined by the DTC Medical Board on 26.12.1986, which recommended that he be given non-driving duties for a period of three months w.e.f. 26.12.1986. Accordingly, respondent no.1 worked in the Ticket Section on medical grounds for the period from 03.01.1987 to 30.10.1987, 26.02.1988 to 29.02.1988 and 01.03.1988 to 10.03.1988. He was further examined by the Medical Board on 08.02.1990 and again the Medical Board opined that the workman is not fit for driving duties for a period of three months. The Medical Board on 08.05.1990 declared the workman to be permanently unfit for the post of driver. By office order dated 10.09.1992, the management, on the basis of the report of the Medical Board dated 08.05.1990, permanently retired the workman from the services with immediate effect under Clause 10 of the D.R.T.A (Conditions of Appointment and Service) Regulations, 1952.

4. The workman filed a civil suit no.169/1992 for declaration and injunction against the management challenging the said order. The learned Civil Judge, Delhi by judgment and decree dated 26.07.1994 decided the preliminary issue "whether the suit of the plaintiff is maintainable" against the workman holding that "the plaintiff cannot legitimately ask the Civil Court to entertain his dispute because the remedy provided by the Special Statute is not so effective. What the plaintiff had alleged in this case may not be a discharge, dismissal or retrenchment but it is definitely termination of his services and, therefore, it is an industrial dispute at least under S.2 (A) and as such the Civil Court has absolutely no jurisdiction to decide the dispute which is an Industrial Dispute at least by fiction within the meaning of S.2A of Industrial Dispute Act."

5. After the rejection of the plaint, the workman filed his Statement of Claim before the Conciliation Officer, Delhi on 26.02.1996. On failure of the conciliation proceedings, a reference No.F.24(621)/98-Lab. u/s. 12 of the Industrial Disputes Act, 1947 (ID Act) was made vide order dated 06.03.1998 by the Government of NCT of Delhi to the Industrial Tribunal with the following terms: -

"Whether the premature retirement of Shri Madan Lal is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect"?

6. The Industrial Adjudicator, while answering the reference as mentioned above, has relied upon a judgment of the learned Single Judge of this Court in Baljeet Singh Vs. DTC, (2000) 83 DLT 286, holding that the services of the drivers, who are disabled during the course of their employment could not have been dispensed with and discriminated with other drivers and skilled workmen.

7. The learned counsel for the Management contended that the Hon'ble Supreme Court in Anand Bihari and Others Vs. Rajasthan State Road Transport Corporation, Jaipur, through its Managing Director and Another, (1991) 1 SCC 731, has laid down the principle that in