Delhi District Court
Darshan Kumar vs Dtc on 18 July, 2026
POIT No: 18/2020 Darshan Kumar Vs. DTC
IN THE COURT OF SH. SHARAD GUPTA
PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-II
ROUSE AVENUE COURTS, DELHI.
In the matter of:
POIT No. 18/2020
CNR No. DLCT13-002710-2020
Sh. Darshan Kumar
S/o Sh. Sadhu Ram,
R/o H.No. 6/474,
Block No.6, Trilok Puri,
New Delhi-110091
As represented by
General Secretary,
Delhi Labour Union,
Agarwal Bhawan, G. T. Road,
Tis Hazari, Delhi - 110054. ..... Workman
Versus
The Delhi Transport Corporation
I.P. Deptt. (Head Quarter),
I.P. Estate, New Delhi .... Management
Date of institution 25.08.2020
Order reserved on 08.07.2026
Dare of Award 18.07.2026
AWARD
1. Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute vide notification
No. F.24 (05)/18/Ref./CD/Lab./17 dated 06.01.2020 for
adjudication with following terms of the reference: SHARAD GUPTA
Digitally signed
by SHARAD
GUPTA Date:
2026.07.18
16:00:14 +0530
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1. "Whether the termination of services of
the workman Sh. Darshan Kumar S/o Sh.
Sadhu Ram, age around 40 years by
management is illegal/or unjustified and
if so, to what relief is he entitled and
what directions are necessary in this
respect?"
2. "Whether the demand of the workman Sh.
Darshan Kumar S/o Sh. Sadhu Ram for
regularization of his services on the post
of Driver with retrospective effect from
his initial date of joining into the
employment with all consequential
benefits thereof, either monetary or
otherwise is legal and justified, in light of
reference no.1 and if so, what relief is he
entitled and what directions are necessary
in this respect?"
Statement of Claim
2. Workman stated that he joined into the employment of the
management w.e.f. 29.09.2010 as a driver on contract basis
and was being paid salary kilometer wise. Initially he was
paid salary @ Rs.4/- kilometer which was later on raised to
Rs. 5/- kilometer. A written test was also conducted at the
time of joining and a driving test and medical examination
was also done at the time of initial joining.
3. It is stated that workman continuously discharged his duties
from 29.09.2010 till 07.08.2018 and vide office order dated
06.09.2018, workman was terminated from services and the
reason given by the management was that the height of the SHARAD Digitally signed
by SHARAD
GUPTA
GUPTA Date:
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workman is 161 c.m. whereas, as per the requirement it
should be at least 162 c.m.
4. It is submitted that the action of the management was totally
wrong in taking the workman on contract basis because the
nature of job on which he was engaged was of regular and
permanent nature and he was entitled to Equal Pay for Equal
Work for the entire tenure, he discharged his services and
non-regularization of services and non-payment of difference
of salary on the principle of "Equal Pay for Equal Work" to
the workman is totally illegal, bad, unjust and malafide.
5. It is averred that the job against which the workman was
working is of a regular and permanent nature of job which is
still continuing with the management. It is stated that the
workman has not committed any misconduct but in case of
any alleged misconduct no memo or charge-sheet was served
upon him and no domestic inquiry was conducted against him
and he was not afforded any opportunity of being heard and
his services were terminated illegally and arbitrarily without
following the principles of natural justice.
6. It is submitted that no seniority list was displayed, no notice
was given, no notice pay was offered and no service
compensation was either offered or paid to the workman at
Digitally signed
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SHARAD GUPTA
GUPTA Date:
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the time of termination of his services and his termination is
violative of Section 25 F, G & H of the Industrial Disputes
Act, 1947 read with Rule 76, 77 & 78 of the Industrial
Dispute (Central) Rule 1957. It is stated that the plea of one
c.m. short height is no plea because the workman was
continuously discharging his services for a period of about
eight years and his services cannot be terminated on the
alleged plea and even otherwise, one Sh. Vinod Kumar and
Rajesh Kumar co-employee of the workman were regularized
in job though their height is even shorter than the workman.
7. It is stated that the management was supposed to give three
months notice to the workman as stipulated under the law but
no such notice was given to the workman and no prior
permission of the appropriate Government was obtained by
the management before terminating the services of the
workman and his termination is in complete violation of the
provisions of Section 25-N of I.D. Act. The action of the
management amounts to unfair labour practice and is in clear
violation of conditions as provided in Section 2 (ra) read with
Item No. 5 (a), (b), (d) & (f) of the Fifth Schedule of the ID
Act, 1947.
8. It is stated that employing persons on regular nature of jobs
and treating them as contract workers and paying them lesser
Digitally
signed by
SHARAD
SHARAD GUPTA
GUPTA Date:
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remuneration than those doing the identical work and the
work of same value amounts to unfair labour practice as
provided in Section 2 (ra) read with Item No.10 of Fifth
Schedule and read with Section 25 T punishable under section
25 U of the Industrial Dispute Act, 1947 as held by the
Hon'ble Supreme Court of India in the Matter of "Umrala
Gram Panchayat Vs. The Secretary, Municipal Employee Union
and Ors" (2015) II LLJ 403 SC, "ONGC Itd. Vs. Petroleum Coal
labour Union and Ors. (2015) IILJ 257 SC", and "Simens Limited
and Anr. Vs. Siemens Employees Union and Anr. (2011)9 SSC
775".
9. It is stated that the workman has been meted out with hostile
discrimination as not only his colleagues but also the persons
juniors to him have been retained in service and he has been
thrown out of job.
10.It is stated that management has not framed any rules or
regularization nor get it passed by the UPSC and nor notified
in the official Gazette for governing the service conditions of
the so called muster roll/part-time/seasonal workers nor it has
any certified standing orders, governing service conditions of
such workers and, therefore, the Model Standing Orders
framed under the Industrial Employment (standing orders)
Act, 1946 are applicable to the workman and the
Digitally signed
management. by SHARAD
SHARAD GUPTA
GUPTA Date:
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11.It is stated that the workmen has acquired the status of a
permanent employee since his initial date of joining after
completing 90 days of continuous service as prescribed in the
Model Standing Order framed under the Industrial
Employment Standing Order Act, 1946. Even otherwise,
after completion of 240 days of continuous employment on
regular basis as has been held by the Hon'ble Supreme Court
of India in ONGC Ltd. Vs. Petroleum Coal Labour Union and
Ors. (2015) IILJ 257 SC.
12.It is stated that a demand notice was served upon the
management by registered A.D. post vide communication
dated 11.12.2018, which was duly received in their office, but
no reply has been received, and it is presumed that the
demand has been rejected. Thereafter, conciliation
proceedings were also initiated, but same resulted into failure
due to adamant and non-co-operative attitude of the
management.
13.Workman has prayed that an Award be made in his favour and
the management be directed to reinstate the workman in
service with continuity of service and full back wages along
with all consequential benefits thereof either monetary or
otherwise and regularize the services of the workman on the
post of Driver with retrospective effect from the initial date of
Digitally signed
by SHARAD
SHARAD GUPTA
GUPTA Date:
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his joining into the employment in proper pay scale and
allowances and to pay him entire difference of salary on the
principle of "Equal Pay for Equal Work". Cost of litigation
has also been prayed for.
Written Statement
14.In the written statement, management has stated that the
workman has approached this Tribunal with unclean hands
with the intention to mislead this Tribunal has averred
fabricated and concocted facts. It is stated that the workman
was engaged purely on contract basis and he had willfully on
his own accord entered into the contractual agreement with
the management.
15.It is submitted that the engagement of the workman was
purely temporary for the post of driver w.e.f. 28.09.2010 to
25.12.2010 for a total period of 89 days as per short term
agreement dated 28.09.2010. It is submitted that after the
completion of 89 days the contract of the workman was
renewed vide short term contract agreement for engaging
drivers on contractual basis dated 31.01.2011. The contract
of the workman was renewed for 89 days vide agreements
dated 28.03.2011 and 29.06.2011 and thereafter on
conclusion of the last contract, the workman was engaged on
contractual basis for a period of one year vide short terms Digitally signed
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Date:
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agreement dated 29.09.2011 and 13.02.2012 and the contract
of the workman was again extended vide agreements dated
14.01.2023, 16.01.2024, 17.01.2015, 20.01.2016, 23.01.2017
and 25.01.2018.
16.It is submitted that the workman had willfully on his own
accord entered into the contractual agreement with the
management and at the time of execution of the initial short
term agreement for the post of driver dated 28.09.2010 the
workman was examined by the Medical Board and vide
report dated 28.12.2010 was declared under height as per the
prevalent medical standards for the candidates selected for
appointment on contractual basis with the management and
the workman had agreed not to raise any claim for seniority,
regularization of services on permanent basis in the
management. Workman was again medically examined on
09.01.2018 and the workman was found to be unfit as per the
medical standards of the management. It is stated that no
demand notice has been served upon the management. Other
averments made in the statement of claim have been denied
and dismissal of the claim has been prayed for.
Issues
17.On 23.10.2021, on the basis of pleadings of the parties,
following issues were framed:
Digitally signed
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SHARAD GUPTA
GUPTA Date:
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1.Whether the workman approached this Tribunal with
unclean hands, if so, its effect. OPM
2. Terms of reference.
3. Relief if any.
Workman's Evidence
18.In order to prove his entitlement, workman examined himself
as WW1 and tendered his evidence by way of an affidavit
Ex.WW1/A. He deposed on the lines of his claim. Workman
has relied upon the documents as WW1/1 to Ex.WW1/18.
Management's Evidence
19.Management examined MW1 Sh. Raman, Depot Manager,
East Vinod Nagar Depot, DTC by way of an affidavit Ex.
MW1/A. He has has relied upon the documents as MW1/1 to
Ex.MW1/7.
20.Final arguments have been heard at length as advanced by
both the parties. I have gone through the documents,
pleadings as well as arguments of parties.
Analysis and Discussion
Issue No.1: Whether the workman approached this Tribunal
with unclean hands, if so, its effect. OPM
Digitally signed
by SHARAD
SHARAD GUPTA
GUPTA Date:
2026.07.18
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21.Before proceeding any further, it would be appropriate to
refer to the settled proposition of law on the point. In
Arunima Baruah v. Union of India and Ors. [(2007) 6 SCC
120] the question involved was how far and to what extent
suppression of fact by way of non- disclosure would affect a
person's right of access to justice which is a human right. It
was opined:
"12. It is trite law that so as to enable the court to refuse to
exercise its discretionary jurisdiction suppression must be of
material fact. What would be a material fact, suppression
whereof would disentitle the appellant to obtain a
discretionary relief, would depend upon the facts and
circumstances of each case. Material fact would mean
material for the purpose of determination of the lis, the
logical corollary whereof would be that whether the same was
material for grant or denial of the relief. If the fact suppressed
is not material for determination of the lis between the
parties, the court may not refuse to exercise its discretionary
jurisdiction. It is also trite that a person invoking the
discretionary jurisdiction of the court cannot be allowed to
approach it with a pair of dirty hands. But even if the said dirt
is removed and the hands become clean, whether the relief
would still be denied is the question."
Digitally signed
by SHARAD
SHARAD GUPTA
GUPTA Date:
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22. The ratio in S.J.S. Business Enterprises (P) Ltd. v. State of
Bihar and Others (2004) 7 SCC 166 can also be adverted to
on the aspect. It was also held in Manmohan Nanda Vs.
United India Assurance Company Ltd. & Anr. 2021 SCC
Online SC 1181 that what are material facts stated to be
suppressed would depend upon facts and circumstances of
each case. It was further held that when the opposite party is
aware of the facts, there cannot be any suppression of the said
facts. Similarly in Nizam Sugar Factory Vs. Collector of
Central Excise AP 2006 SCC Online SC 445 it was held that
when facts are already in knowledge of the Authorities, it
cannot be said that there is suppression of the said facts by the
other side.
23.Thus, it is well settled that what are material facts suppression
whereof would disentitle a party from obtaining a
discretionary relief are dependent upon facts and
circumstances of every case. Furthermore, it is well settled
that when facts stated to be suppressed are already in
knowledge of the Authority concerned, there cannot be
suppression of the said facts.
24.Adverting to the facts of the present case, the onus to prove
this issue was on the management. During course of
arguments, Ld. AR for management urged that the workman
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was again appointed as contractual driver by the management
on 05.03.2021 and this fact has been suppressed by the
workman. In this context, perusal of record would show that
the reference dated 06.01.2020 was received in this Court on
07.03.2020 i.e. much prior to the workman having been re-
engaged as contractual driver by the management.
Furthermore, the workman was cross examined in this regard.
In his cross-examination, WW-1 admitted that he had been
reinstated by the management in the year 2021. Thus, the fact
that the workman was re-engaged as driver on contractual
basis pertains to the period after the industrial dispute was
referred to this Tribunal. Furthermore during his cross-
examination, the workman admitted to the fact of his
reinstatement by the management and there was no
suppression of the said fact by him. Furthermore, the
management had filed its written statement on 01.10.2021 on
which date, the workman was already re-engaged on
05.03.2021 by the management as a contractual driver. The
management failed to aver the said fact in its written
statement. Be that as it may, the fact of reinstatement of the
workman was within knowledge of the management even
prior to filing of the written statement. The ratio in Nizam
Factory (Supra) and Manmohan Nanda (Supra) are fully
applicable to the facts of the present case. When the
management itself was having knowledge of re-engagement
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of the workman on contract basis w.e.f. 05.03.2021, the
workman cannot be said to have suppressed the said fact
especially when he admitted to the same in his cross-
examination. Furthermore, the present reference is against the
termination of services of the workman as well as for
regularization of his services. Having regard to the scope of
the present reference, mere non-pleading of fact of his re-
engagement on contract basis by the workman, cannot be
deemed to be suppression of a material fact. As such, the
workman cannot be held guilty of having approached this
Tribunal with unclean hands.
25.Further contention of the management is that the medical
examination of the workman was conducted on 28.12.2010
vide Ex.MW1/4 where also he was found under height by 1
cm and the workman took contractual engagement with the
management despite the same on 28.09.2010. To my mind,
this argument of the management is neither here nor there.
There is no allegation against the workman that he withheld
his medical examination report. Rather, the medical
examination of the workman was conducted at behest of the
management and there is nothing on record to suggest that the
management was either unaware of the said medical report or
the workman took employment without the consent of the
management. It is also unbelievable that the workman could Digitally
signed by
SHARAD
SHARAD GUPTA
GUPTA Date:
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have forced the management to give employment to him if
the same was not desired by the management. In Shri Krishan
Vs. Kurushetra University 1976 AIR 376, it was held as
follows:-
In the instant case the admission form of the appellant must have
been forwarded in December 1971 whereas the examination was to
take place in April/May 1972. It is obvious that during this period
of four to five months it was the duty of the University authorities
to scrutinise the form in order to find out whether it was in order.
Equally it was the duty of the Head of the Department of Law
before submitting the form to the University to see that the form
complied with all the requirements of law. If neither the Head of the
Department nor the University authorities took care to scrutinise
the admission form, then the question of the appellant committing a
fraud did not arise. It is well settled that where a person on whom
fraud is committed is in a position to discover the truth by due
diligence, fraud is not proved. It was neither a case of suggestio
falsi, or suppressio veri. The appellant never wrote to the
University authorities that he had attended the prescribed number
of lectures. There was ample time and opportunity for the
University authorities to have found out the defect. In these
circumstances, therefore, if the University authorities acquiesced in
the infirmities which the admission form contained and allowed the
appellant to appear in Part I Examination in April 1972, then by
force of the University Statute the University had no power to
withdraw the candidature of the appellant. Digitally signed
by SHARAD
SHARAD GUPTA
Date:
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26.The ratio in Shri Krishan (Supra) is fully applicable to the
facts of the present case. It was for the management to
consider the medical examination of the workman conducted
on 28.12.2010 vide Ex. MW1/4. Pertinently the medical
examination was conducted at behest of the management
itself and the management was aware of the same. Thus the
management despite having knowledge of the fact that the
height of the workman was 1 c.m. less than the required
height chose to employ him on contract basis w.e.f.
29.09.2010 and again re-engaged him on contract basis w.e.f.
05.03.2021. Now, the management cannot say that the same
was on account of any fraud or suppression by the workman.
In the totality of circumstances, I am unable to agree with the
submissions of Ld. AR for management that the workman
concealed any material facts. Thus, this issue is decided
against the management and in favour of the workman.
Issue No.2: Terms of reference.
27.The question to be decided is as to whether the termination of
services of the workman by management is illegal/or
unjustified and whether the claim of the workman for
regularization of his services on the post of Driver with
retrospective effect from his initial date of joining into the
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SHARAD GUPTA
Date:
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employment with all consequential benefits thereof, either
monetary or otherwise is legal and justified.
28.I shall first deal with the Term of Reference regarding
termination of service of the workman by the management.
Adverting to the facts of the present case, it is undisputed that
the workman was initially employed on contract basis w.e.f.
29.09.2010 as Driver. It is also undisputed that the contract
was renewed on multiple occasions till 27.01.2018. It is also
undisputed that medical examination of the workman was
again conducted on 09.01.2018 when his height was found to
be less by 1 c.m. Pertinently the second medical examination
of the workman was conducted at the time his case was
considered for regularization of his services. It is the case of
the management itself that thereafter a show cause notice
dated 27.07.2018 Ex.WW1/11 was issued to the workman
which was replied to by the workman vide Ex.WW1/12.
Thereafter, he workman was summarily terminated from the
post of Driver vide Ex.WW1/13 dated 07.08.2018. MW-1 in
his cross-examination admitted that neither the workman was
charge-sheeted nor any departmental inquiry was initiated
against him before terminating his services.
29.Management, has submitted that workman was contractual
employee, and the non-renewal of his contract does not Digitally signed
by SHARAD
SHARAD GUPTA
Date:
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amount to illegal termination of his services. Instead, it falls
under the ambit of Section 2(oo)(bb) of the Industrial
Disputes Act, 1947, which excludes the termination of a
contract worker upon the expiry of the contract period from
the definition of retrenchment. It is a matter of record that no
specific objection was taken by the management in its written
statement that Section 2 (oo) (bb) is applicable to the facts of
the present case. To my mind, now the management cannot be
permitted to take such an objection. However, since the
objections has been raised during final arguments, I shall now
proceed to deal with the same.
30.Hon'ble Delhi High Court in the case of Jitender Kumar v.
State (NCT of Delhi), 2019 SCC OnLine Del 10648 after relying
upon the judgment of Hon'ble Supreme Court in S.M. Nilajkar
v. Telecom District Manager, (2003) 4 SCC 27 has observed the
following with respect to the applicability of Section 2(oo)
(bb) of I.D. Act. The relevant portion of the judgment is as
follows:
14. In S.M. Nilajkar v. Telecom, District
Manager, Karnataka, (2003) 4 SCC 27 : AIR
2003 SC 3553, the Supreme Court held that
where the management pleads that clause (bb)
of Section 2(oo) of the ID Act is attracted; the
burden of proof would be on the management to
establish the same by way of evidence.
Paragraphs 13 and 14 of the said judgment read
as under: Digitally signed
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Date:
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"13. The termination of service of a workman
engaged in a scheme or project may not amount
to retrenchment within the meaning of Sub-
clause (bb) subject to the following conditions
being satisfied:
(i) that the workman was employed in a project
or scheme of temporary duration;
(ii) the employment was on a contract, and not
as a daily-wager simplicitor, which provided
inter alia that the employment shall come to an
end on the expiry of the scheme or project; and
(iii) the employment came to an end
simultaneously with the termination of the
scheme or project and consistently with the
terms of the contract.
(iv) the workman ought to have been apprised
or made aware of the abovesaid terms by the
employer at the commencement of employment.
14. The engagement of a workman as a daily-
wager does not by itself amount to putting the
workman on notice that he was being engaged
in a scheme or project which was to last only for
a particular length of time or upto to occurrence
of some event, and therefore, the workman
ought to know that his employment was short-
lived. The contract of employment consciously
entered into by the workman with the employer
would result in a notice to the workman on the
date of the commencement of the employment
itself that his employment was short-lived and
as per the terms of the contract the same was
liable to termination on the expiry of the
contract and the scheme or project coming to an
end. The workman may not therefore complain
that by the act of employer his employment was
coming to an abrupt termination. To exclude the
termination of a scheme or project employee
from the definition of retrenchment it is for the Digitally signed
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employer to prove the abovesaid ingredients so SHARAD GUPTA
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as to attract the applicability of Sub-clause (bb)
abovesaid. In the case at hand, the respondent-
employer has failed in alleging and proving the
ingredients of Sub-clause (bb), as stated
hereinabove. All that has been proved is that the
appellants were engaged as casual workers or
daily-wagers in a project. For want of proof
attracting applicability of Sub-clause (bb), it has
to be held that the termination of the services of
the appellants amounted to retrenchment.”
15. As already noticed in the present case, the
Respondents have failed to lead any evidence
themselves and also failed to cross-examine any
of the workmen. The question as far as the
Labour Court is concerned, was only whether
Section 25-F of the ID Act, stood attracted.
Interestingly, in the written statement filed by
the Respondents, no plea was taken that clause
(bb) of Section 2(oo) of the ID Act was
attracted. In any event, there was no evidence to
support such a plea. The learned Single Judge,
therefore, was in error in permitting the
Respondents to raise the plea for the very first
time in the High Court. Notwithstanding this, in
the absence of any evidence to show that the
termination was in terms of the contract, such a
plea could not have been entertained and
adjudicated upon.
16. The fact remains that in these cases, the
services of the Appellants were continued well
beyond the period of 89 days, in terms of the
initial appointment orders, which took effect
from 1st December, 2001. Admittedly, they
continued serving for over four years till the
actual date of termination of their services, by
the order dated 20th December, 2005.
Digitally signed
by SHARAD
GUPTA
SHARAD Date:
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31.In the present case, burden to prove the applicability of
Section 2(oo)(bb) lies with the management. Workman was
working as Driver continuously and uninterruptedly from his
initial date of appointment i.e. 29.09.2010 till 06.09.2018 and
thereafter, he was again engaged on contract basis w.e.f.
05.03.2021 in the establishment of the management. The
factum of service of the workman as detailed aforesaid has
not been controverted or disputed by the management.
Rather the management itself is relying upon the contracts
between it and the workman as Ex.MW1/2 and Ex.MW1/3.
Thus, the factual proposition which emerges is that the
workman had worked with the management for nearly eight
years initially and thereafter he was again in service of the
management since 05.03.2021 onwards.
32.It is evident that the workman was not employed in a project
or scheme of temporary duration and workman was engaged
in permanent and perennial work, and not in a temporary
project. In the facts of the present case, MW-1 in his cross
examination admitted that the workman was appointed by the
management through appointment process including
recruitment test and medical examination. It is evident that
the work of Driver is of perennial nature. Thus, the material
on record establishes the permanent nature of employment of
the workman. Digitally signed
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33.It is also not in dispute that the services of the workman
were terminated summarily vide letter dated 06.09.2018
Ex.WW1/15. Thus, contention of the management that the
termination falls within the exception provided under Section
2(oo)(bb) of the I.D. Act and does not constitute retrenchment
is unsustainable and devoid of merit.
34.The management has submitted that there is no need to
conduct any departmental inquiry as the workman is
admittedly a contractual worker. Management further
submitted that the procedure of serving charge-sheet and
conducting domestic/departmental inquiry is to be done only
against the permanent and regular employees. The
management also submitted that the contractual workers are
not entitled for the procedure of domestic/departmental
inquiry and their services are temporary in nature, thus can be
terminated any time by the management. This Tribunal does
not find consensus with this argument of the management.
35.It is settled law that even a contractual appointment cannot be
terminated without affording an opportunity of hearing, if
founded on allegation and/or misconduct, which casts a
stigma on the employee. The Supreme Court in K.C. Joshi v.
Union of India and Others, (1985) 3 SCC 153, held that
contract of service has to be in tune with Articles 14 and 16
Digitally signed
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POIT No: 18/2020 Darshan Kumar Vs. DTCone can dismiss anyone without a semblance of inquiry or
whisper of principles of natural justice, such an approach
overlooks the well-settled principle that if State action affects
livelihood or attaches stigma, punitive action can be taken
only after an inquiry, in keeping with the principles of natural
justice. The ratio in Nina Lath Gupta Vs. Union of India 2023 :
DHC: 2944 can also be adverted on this aspect. Furthermore,
the Division Bench of Hon’ble Delhi High Court in Baijnath
Mandal v. UOI & Ors., 2014 SCC OnLine Del 7204, afterexamining the judgments on stigmatic/punitive order held
that there can be no doubt that when an employee has been
granted a temporary status and the order of termination is
stigmatic and punitive and not a discharge simplicitor, then a
departmental inquiry has to precede the termination and an
order without an inquiry, would be violative of principles of
natural justice. This has severe consequences for the
employee since it gets printed and submitted with the
stigmatic declaration made against him, marring his future
prospects of employment. The Hon’ble Court held that
Respondent should have conducted a departmental enquiry
before terminating the services to provide a chance to the
Petitioner to meet the accusations of his misbehaviour, since
termination was founded on his alleged misbehaviour.
Division Bench quashed the termination order and directed
the reinstatement of the Petitioner with consequential
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benefits. Similarly in Mangal Singh v. Chairman, National
Research Development Corporation & Ors., 2009 SCC On
Line Del 2345, Petitioner was an appointee on contractual
basis and his services were terminated by what he alleged was
a punitive and stigmatic order, without a departmental
enquiry. It was held that the order of termination was not a
discharge simplicitor but was punitive in character and the
petitioner could not have been terminated without any
inquiry.
36.The Hon’ble Supreme Court in MCD vs. Naresh Kumar &
Ors., Writ Petition (C) No. 2989 of 2002 decided on
27.08.2007, held the termination of the workmen as illegal
and non-est on account of not following the principles of
natural justice. The relevant portion of the judgment is as
follows:
“16. The counsel for the respondent workman
has rightly relied on the judgment of the
Supreme Court in the case of Praveen Kumar
Jain (supra) where the circumstances were
similar to the case in hand, the employee
having indulged in a misconduct, his services
were terminated without holding a
departmental enquiry. After taking note of the
facts of the case, the Supreme Court held as
below:
Para 4 : Unfortunately, for the appellant the
impugned order of termination extracted
above does not show that it was passed after Digitally signed
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disciplinary authority was satisfied about the
said misconduct. On the contrary, it seeks to
terminate the services of Respondent 1 by
way of a simple discharge and not by way of
any penalty. It is only during the proceedings
before the Labour Court that a different stand
was taken that it was by way of penalty. This
stand was obviously taken by the appellant
because the order of simplicities termination
would have remained stillborn as Section 25F
of the Industrial Disputes Act was admittedly
not complied with by the appellant. With this
difficulty staring in the face, a stand was
taken that it was by way of penalty. If it was
by way of penalty then at least a regular
departmental enquiry had to be conducted. It
was also required to be followed by the
enquiry officer’s report resulting in adverse
finding against Respondent 1 and its
acceptance by the disciplinary authority.
Nothing of this sort was done. There is
neither the enquiry officer’s report holding
Respondent 1 guilty of charge which in fact
was never framed against him nor is there
any acceptance of such a finding of the
enquiry officer by the disciplinary authority.
In fact the disciplinary authority has never
held Respondent 1 guilty of any charge of
misconduct….
17. Same is the situation even in the present case. The
petitioner MCD did not conduct any
departmental enquiry prior to issuance of the
termination order and consequently, the
impugned order of termination is illegal and
non est. As observed above, even a implicate
discharge order, passed without following the Digitally signed
due process of law is vocative of Section 25F SHARAD by SHARAD
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POIT No: 18/2020 Darshan Kumar Vs. DTCof the Act. The respondent workman before
being visited by such a grave civil
consequence as termination of service was
entitled to be afforded an opportunity of
hearing followed by a departmental enquiry.
There is force in the plea of the respondent
workman that the petitioner MCD was well
entitled to prove the misconduct even before
the Labour Court. However, neither was such
a plea taken in the written statement, nor was
any other effort made by the petitioner MCD
to seek an opportunity to prove the
allegations leveled against the respondent
workman.”Thus, in view of the settled position
of law laid down by the Hon’ble Courts, the
present termination order dated 06.09.2018
passed by the management becomes void-ab-
inito, illegal and non- est on account of non-
compliance of principles of natural justice prior
to terminating the services of the workman.
37.In the facts of the present case, the termination of the
workman was not a discharge simplicitor but was punitive in
nature. Therefore, as per the position laid down by the
Hon’ble Superior Courts in the aforementioned cases, the
workman concerned despite being a contractual worker is
entitled to the domestic/departmental inquiry. Merely because
he was a contractual worker and not a regular and permanent
employee of the management, the basic tenets of the law i.e.
principles of natural justice can not go in vacuum and resume
once he becomes a permanent employee. These basic tenets
of the law, just like the industrial law, always remain and does Digitally signed
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POIT No: 18/2020 Darshan Kumar Vs. DTCnot discriminate between the part-time, seasonal muster-roll,
daily wagers, contractual, regular, permanent or any other
category of the workman for that matter. In the present case,
it is an admitted position that no domestic/departmental
inquiry was conducted before terminating the services of the
workman concerned.
38.In the facts of the present case, the management had no
qualms about engaging the services of workman as driver
w.e.f. 29.09.2010 till 06.09.2018 and thereafter w.e.f.
05.03.2021 onwards despite the workman being 1 c.m. under
height. In the facts of the present case, this Tribunal is of the
opinion that the management has conducted itself arbitrarily
and unjustly. The workman in the facts of the present case
has been more sinned against than sinning. The management
failed to provide any rational for appointing the workman
initially as a contractual Driver, continuing him as Driver for
years altogether and thereafter, re-hiring him as Driver again
despite the fact that even as per the management the workman
was found to be under height by 1 c.m. Furthermore, the
management has not been able to show as to how the
workman was unable to discharge his duties satisfactorily
being under height by 1 c.m. Rather the act of management
in hiring the workman initially as driver and thereafter re-
hiring him as driver on contract basis would show that the Digitally signed
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POIT No: 18/2020 Darshan Kumar Vs. DTCworkman was able to discharge his duties to the satisfaction
of the management. The act of the management in
considering the height of the workman only at time he was
considered for regularization reeks of arbitrariness and cannot
be condoned. Thus, even if the assertions of management
that the workman was under height by 1 c.m. are taken at face
value, the same even as per the conduct of the management
did not affect the discharge of his duties by the workman.
Contention of the workman in his statement of claim as well
as evidence affidavit was that one Sh. Vinod Kumar and
Rajesh Kumar were regularized by the management in their
jobs although their height was even shorter than the
workman. The workman was not cross examined on this
aspect and the assertions in the statement of claim in this
regard were not specifically denied. The assertions of the
workman in this regard have thus come on record unrebutted
and unchallenged. This fact also goes against the action of
the management in terminating the services of the workman.
Thus, looked at from either angle, the management was not
justified in summarily terminating the services of the
workman.
39.Furthermore, in the event of termination simplicitor, there
is nothing on record that the management has complied with
the provisions of Section 25 F of I.D. Act. Section 25 F
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POIT No: 18/2020 Darshan Kumar Vs. DTCmandates giving of one month notice or wages for period of
notice, compensation and service of notice on appropriate
Government prior to retrenchment of workman. There is
nothing on record to suggest that the provisions of Section F
were complied with. MW-1 rather admitted that no
retrenchment compensation was provided to the workman.
Thus, in view of the evidence and material placed on record,
this Tribunal is of the considered opinion that the
management has clearly committed unfair labour practice as
mentioned in Fifth Schedule at Item No. 5(a), (b) and (f) of
the I.D. Act by illegally terminating the services of the
workman concerned by way of victimization and in colorable
exercise of employer’s rights as his services were terminated
merely on the whims and fancies of the management. This
Tribunal further holds that the management did not follow the
principles of natural justice as no domestic/departmental
inquiry was conducted and his services were terminated w.e.f.
06.09.2018 with undue haste without offering any
opportunity of being heard.
40.The AR for the workman have argued that once the
termination is held to be illegal, the normal relief is to award
reinstatement with continuity in service and full back wages.
He placed reliance upon the judgment of Hon’ble Delhi High
Court in Delhi Transport Corporation vs Ram Kumar And Digitally signed
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Another, 1982 (44) FLR 356 wherein it was held that once the
termination is held to be illegal and unjustified, the normal
rule is to award reinstatement with full back wages and
continuity in service except when the workman is gainfully
employed coupled with receiving wages equivalent to his last
drawn salary at the time of his illegal termination. The Para
14 of the aforementioned judgment is as follows: below:
“……The principle is that when an employee
after protracted litigation with the employer
succeeds in showing that the termination of his
service was unjustified he would normally be
entitled to reinstatement with full back wages
expecting of course if it could be shown that he
had been gainfully employed in the meanwhile.
Thus full back wages would be the normal rule
and the party objecting to it must establish the
circumstances necessitating departure, See
Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha
MANU/SC/0369/1979 : (1980)ILLJ137SC.
Thus if the employer wishes to show that
workman gainfully employed he must establish
and prove that fact; no presumption of
being gainfully employed can be raised. It is
not dispute that no evidence has been led or
even shown on the record by the appellant
which shows that workman was at any time in
between employed elsewhere. In that view there
would be no justification for denying him full
back wages. The mere fact of long time having
elapsed is certainly not a reason to deny him
his normal relief of reinstatement because as
said in Panitole Tea Estate case. “If his
dismissal was wrongful then merely because Digitally signed
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proceedings for adjudication of the industrial GUPTA Date:
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POIT No: 18/2020 Darshan Kumar Vs. DTCdisputes have taken a long time is by itself no
reason for not directing his reinstatement if it is
otherwise justified being in accordance with
normal rule.”
41. Further, reliance is placed upon case of Deepali
Gundu Surwase vs Kranti Junior Adhyapak & Ors., Civil
Appeal No. 6767/2013 decided on 12.08.2013 wherein the
Hon’ble Supreme Court has held that onus to prove that the
gainful employment shifts to the management once the
workman has pleaded that he/she is not gainfully employed
elsewhere. The Para 33 of the aforementioned judgment is
as follows:
“33 (iii) Ordinarily, an employee or workman
whose services are terminated and who is
desirous of getting back wages is required to
either plead or at least make a statement
before the adjudicating authority or the Court
of first instance that he/she was not gainfully
employed or was employed on lesser wages.
If the employer wants to avoid payment of full
back wages, then it has to plead and also lead
cogent evidence to prove that the
employee/workman was gainfully employed
and was getting wages equal to the wages
he/she was drawing prior to the termination
of service.
This is so because it is settled law that the
burden of proof of the existence of a particular
fact lies on the person who makes a positive
averments about its existence. It is always
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shows that he was not employed, the onus lies
on the employer to specifically plead and
prove that the employee was gainfully
employed and was getting the same or
substantially similar emoluments.”
42. The workman has asserted that he remained
unemployed from 07.08.2018 when his services were
illegally terminated by the management till 05.03.2021
when he was re-engaged as contractual driver by the
management. The management did not cross-examine him
on this aspect and neither placed any document to show that
the workman was gainfully employed elsewhere for the
said period. In the absence of any evidence that the
workman is gainfully employed elsewhere, this Tribunal
cannot assume the same. Moreover, no exceptional
circumstances or situations were pleaded or proved by the
management as to why this Tribunal should deviate from
the normal rule of reinstatement and continuity in service
along with full back wages once the termination is held to
be illegal. In view of aforementioned reasons, this Tribunal
holds that the workman concerned is entitled to
reinstatement with all consequential benefits of continuity
in service and full back wages.
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43. Now, I shall deal with the second term of reference
regarding entitlement of workman to regularization of his
services. Coming to the factual matrix of this case, the
service particulars of the workman i.e. his date of joining,
designation are not disputed, and the same were also
admitted by the management’s witness during his cross-
examination. It is an undisputed fact that the workman has
worked with the management w.e.f. 29.09.2010 on the post
of Driver. He has worked continuously and uninterruptedly
till 07.08.2018 performing the permanent and perennial
nature of the work of Driver. It is also the case of the
workman that prior to his appointment a written test,
driving test and medical examination was conducted by the
management, which remained unrebutted. Despite the
same, the management instead of regularizing him
terminated his services. It would also be pertinent here to
refer to the cross-examination of MW-1. MW-1 admitted
that prior to the recruitment of drivers they are supposed to
undergo a recruitment test. He admitted that the workman
underwent medical examination on 27.12.2010 after being
selected by DSSSB for the post of driver. MW-1 admitted
that the nature of work and working hours of contract
drivers and the regular drivers are identical. He asserted
that the contract drivers are paid minimum wages as per the
Minimum Wages Act. He admitted that regular/permanent
Digitally
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POIT No: 18/2020 Darshan Kumar Vs. DTCdrivers are paid their salary in proper pay scale with all
benefits. He denied that the management treated workman
on contract basis to deny him status and salary of regular
driver.
44. There is nothing on record to show that work and
conduct of the workman was not satisfactory except the
issue of his height being less by 1 cm from the required
height. The issue of the workman being under height has
already been dealt in preceding parts of this Award. It is not
the case of the management that the work of a Driver is not
a permanent and perennial nature of work. Furthermore,
the work of Driver is still continuing with the management,
and the management has regular employees for the said
work as is apparent from the cross-examination of MW-1.
It is not the case of the management that the workman
does not have the requisite qualifications for the post
of Driver. The management has also not made a case that
they did not have vacant posts of Driver at the time of
initial appointment of the workman or at any point of time
thereafter. Rather as per the own case of the management,
the workman was considered for regularization meaning
thereby that the management had vacant sanctioned posts of
drivers available at the relevant time. The fact that the
management considered the case of workman for
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POIT No: 18/2020 Darshan Kumar Vs. DTCregularization implies the perennial and permanent nature
of work of Driver in the Establishment of the management.
No documentary evidence to the contrary has been
produced before this Tribunal. This Tribunal has failed to
understand as to why despite the permanent and perennial
nature of work, fulfillment of requisite qualifications and
availability of posts, having satisfactory work and conduct,
the workman was appointed on contract basis in the first
place. Even though the workman was stated to be engaged
on contract basis, however, management failed to show as
to why it had to resort to hiring workers as such despite it
being a permanent and perennial nature of work.
45. In the opinion of this Tribunal the management has
indulged in unfair labour practice as enumerated in Section
2(ra) read with item 10 of Fifth Schedule of the Industrial
Disputes Act by engaging the workman as a contractual
worker and continuing him for years as such. Further
employing the workman for permanent and perennial nature
of work of Driver and treating him as mere daily wager and
to continue him as such was purportedly with the object of
depriving the status of permanent workman and the same
amounts of unfair labour practice as regularizing his
services would mandate the management to pay the salary
in regular pay scale to the workman. Reliance can be placed Digitally signed
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POIT No: 18/2020 Darshan Kumar Vs. DTCupon the judgment of Hon’ble Supreme Court titled as
Chief Conservator of Forest and Anr. Vs. Jagannath
Maruti Kondhare, (1996) 2 SCC 293 and the judgment of
Hon’ble Delhi High Court titled as Project Dir. Dep. Of
Rural Development v. Its Workmen, 2019 SCC OnLine
Del 7796, and Pradeep Rana & Ors. vs. NDMC (I.D. No.
212/2016), decided on 11.08.2023.
46. This Tribunal cannot further perpetuate the
unfair labour practice as met out by the management and
has to rectify the same, more so when the same is
prohibited and punishable under Section 25T & 25U of the
I.D. Act. As far as the power of this Tribunal to grant such a
relief is concerned, the Constitution Bench of the Hon’ble
Supreme Court in the case of Bidi, Bidi Leaves’ and
Tobacco Merchants Association vs. The State of Bombay,
Civil Appeals Nos. 415 to 418 of 1960 decided on
15.11.1961 has held that the Tribunal has the wide powers
to create new rights and liabilities upon the employer. The
relevant portion of the judgment is reproduced below:
“15. It is well settled that industrial
adjudication under the provisions of the
Industrial Disputes Act 14 of 1947 is given
wide powers and jurisdiction to make
appropriate awards in determining industrial
disputes brought before it. An award made in SHARAD by
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POIT No: 18/2020 Darshan Kumar Vs. DTCobligations on the employer in the interest of
social justice and with a view to secure peace
and harmony between the employer and his
workmen and full co-operation between them.
Such an award may even alter the terms of
employment if it is thought fit and necessary to
do so. In deciding industrial disputes the
jurisdiction of the tribunal is not confined to
the administration of justice in accordance
with the law of contract. As Mukherjea, J., as
he then was, has observed in Bharat Bank Ltd.,
Delhi v. Employees of the Bharat Bank Ltd.,
Delhi the tribunal can confer rights and
privileges on either party which it considers
reasonable and proper, though they may not be
within the terms of any existing agreement. It
has not merely to interpret or give effect to the
contractual rights and obligations between
them which it considers essential for keeping
industrial peace”. Since the decision of the
Federal Court in Western India Automobile
Association v. Industrial Tribunal, Bombay it
has been repeatedly held that the jurisdiction of
Industrial Tribunals is much wider and can be
reasonably exercised in deciding industrial
disputes with the object of keeping industrial
peace and progress (Vide: Rohtas Industries,
Ltd. v. Brijnandan Pandey, Patna Electric
Supply Co. Ltd.,Patna v. Patna Electric Supply
Workers’ Union).
Digitally
47. Furthermore, there are series of judgments from
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POIT No: 18/2020 Darshan Kumar Vs. DTCCourt on the power of the Tribunal to grant relief in order
to rectify unfair labour practices by the management.
Judgments such as Chief Conservator of Forest and Anr.
(Supra), Project Director (Supra), and ONGC v. Krishan
Gopal, (2021) 18 SCC 707 establish that the power of
Tribunal to grant relief of regularization pursuant to
findings of unfair labour practices is not new but is well-
established in a series of judgments.
48.Management has also argued that the workman on his own
accord entered into the contractual agreement and as per the
contract the workman had agreed not to raise any claim for
seniority, regularization of services on permanent basis with
the management. This tribunal does not find any consensus
with this argument of the management. Merely because the
workman has “consented” to his appointment on the post of
Driver , that does not give the license to the management to
indulge in unfair labour practices. Given that the workman is
a lowly paid employee and considering his socio-economic
background, it is unreasonable to assume that he possesses
equal bargaining power in determining the terms of his
employment, including decisions related to his regularization.
49.Reliance is placed upon the judgment of Hon’ble Supreme
Court in Central Inland Water Transport Corpn. v. Brojo Nath
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Ganguly, (1986) 3 SCC 156. Likewise, the Hon’ble Supreme
Court in the case of Dhirendra Chamoli and Ors vs State of
UP., (1986)1 SCC 637 held that employees, especially those
in low-wage categories, often have no choice but to accept
employment under exploitative terms offered by the employer
due to the prevailing conditions of unemployment and their
socio- economic background. The fact that these employees
accepted employment with full knowledge of the terms does
not absolve the government or the employer from the
mandate of equality enshrined in Article 14 of the
Constitution, which also implies equal pay for work of equal
value. Similarly, in the Officer Incharge Defence
Standardization Cell vs Mukesh Kumar, 2013(4)SC T108
(Delhi), the Hon’ble Delhi High Court emphasized that the
employer cannot use contract stipulations as a tool of
exploitation. Their unilateral imposition of oppressive and
unreasonable conditions of service, which the workman has
little choice but to accept, cannot be justified. Thus, the
argument of the management in this regard is liable to be
rejected.
50. In “Deen Bandu Garg & Others Vs South Delhi Muncipal
Corporation & Others, WP (C) 11693/2019″, decided on
16.04.2025, Hon’ble High Court regularized the service of the
workmen by holding that: Digitally signed
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(i) the applicants have rendered continuous and uninterrupted
service for the MCD for decades except, in some cases, for
temporary summer vacation breaks,
(ii) they are working as teachers, so that their work is
perennial and their need continuous,
(iii) they were appointed against sanctioned posts,
(iv) they were appointed after a due process of selection,
following an advertisement, which required the applicants to
possess all essential qualifications for the post, and satisfy the
age stipulations, and
(v) they are directly employed under the MCD and are under
their supervision.
51.In the present case it stands proved that:
a) Workman has rendered continuous and uninterrupted
service for the DTC.
b) Workman is performing the permanent and perennial
nature of work as a Driver.
c) There is nothing on record to indicate that the workman
does not fulfill qualifications for the job
e) Even as per MW-1 the work and conduct of the workman
was satisfactory through out and he was fulfilling the
requisite qualification of driver when he was initially
appointed. Digitally signed
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52.Workman gave sustained contribution to the management.
There is no adverse remark against him. In view of
undisputed service of the workman and the perennial nature
of duty and as held in above authoritative judgments, the
service of the workman is entitled to be regularized on the
post of driver from the date of his initial appointment w.e.f.
29.09.2010.
53.So far as the question of consequential benefits is concerned,
the Hon’ble Supreme Court in Dhirendra Chamoli & Ors. vs.
State of U.P., (1986) 1 SCC 637 held that workers performing
identical duties must receive the same salary and service
conditions.
54.Similarly, the ratio in ” MCD Vs. Sultan Singh & Others W.P.
(C ) No.7947/2010″ can be adverted to on the aspect where the
similar relief was awarded to the workman therein, by the
Central Administrative Tribunal and writ petition filed against
the order was dismissed by Hon’ble High Court. Similarly in
State of Punjab And Others Vs. Jagjit Singh And Others (2017) 1
SCC 248 it was held that the principle of equal pay for equal
work was applicable to temporary employees also on account
of their performing same duties as discharged by regular
employees against sanctioned posts. Digitally signed
by SHARAD
SHARAD GUPTA
Date:
GUPTA 2026.07.18
16:05:38
+0530
Award 40 of 42
POIT No: 18/2020 Darshan Kumar Vs. DTC
55.In view of above discussion, it is held that the termination of
service of workman by the management is found to be illegal
and unjustified. The workman is held entitled to continuity of
service and full back wages from 06.09.2018 till 05.03.2021
with all consequential benefits. It is further held that the
workman is entitled to regularization in service on the post of
Driver w.e.f. 29.09.2010 along with payment of entire
difference of salary on the “Principle of Equal Pay for Equal
Work” with all consequential benefits.
Relief
56.In view of the above findings, it is held that the termination of
workman vide letter dated 06.09.2018 by the management
was illegal. The workman Darshan Kumar S/o Sh. Sadhu
Ram is entitled to continuity of service and full back wages
from 06.09.2018 till 05.03.2021 with all consequential
benefits. It is further held that the workman is entitled to
regularization in service on the post of Driver w.e.f.
29.09.2010 along with payment of entire difference of salary
on the “Principle of Equal Pay for Equal Work” with all
consequential benefits.
57.Management is directed to implement the award within 60
days failing which the management will be liable to pay an
interest at the rate of 8% p.a. from the date of terms of Digitally signed
by SHARAD
SHARAD GUPTA
Date:
GUPTA 2026.07.18
16:05:47
+0530Award 41 of 42
POIT No: 18/2020 Darshan Kumar Vs. DTCreference i.e. 06.01.2020 till its realization. The award is
passed accordingly.
58.Copy of the Award be given dasti to both the parties and be
also sent to the appropriate Government for information and
necessary action in terms of Section 55 Industrial Relations
Code 2020.
59.File be consigned to Record Room.
Dictated and announced in the Digitally signed
by SHARAD
open Court on 18th July, 2026 SHARAD GUPTA
GUPTA Date:
2026.07.18
16:05:52 +0530
( SHARAD GUPTA )
Presiding Officer Industrial Tribunal-II,
Rouse Avenue District Court
New Delhi.
Award 42 of 42
