JUDGMENT
S.K. Mahajan, J.
1. Rule.
2. With the consent of the parties, the matter has been heard and disposed of by this order.
3. Respondent was employed as a fireman with the Delhi Fire Service on 13th June, 1945. In 1957, Delhi Fire Service became a part of the Municipal Corporation of Delhi and service rules of MCD became applicable to its employees. As per rules applicable to the employees of the Delhi Fire Service, before it became a wing of the Municipal Corporation of Delhi, the age of retirement of a fireman was 50 years. Age of superannuation in the Municipal Corporation of Delhi was regulated by F.R.-56. In 1963, the Fundamental Rules were amended and the age of superannuation of the employees was raised to 58 years. On coming into force of the amendment in FR-56, the Municipal Corporation of Delhi also amended its regulations making the age of retirement of its employees as 58 years, however, the age of retirement of the employees working in Delhi Fire Service was raised only up to 53 years vide Resolution dated 6th September, 1973.
4. The respondent on attaining the age of 53 years was retired on 30th June, 1978. Sometimes in 1978, a civil writ petition came to be filed by the employees of the Delhi Fire Service in this Court for a declaration that after coming into force of Fundamental Rule-56 their age of superannuation stood raised to 58 years. This writ petition was decided on 9th February, 1979 and it was held by this Court that there may be valid reasons to keep the age of retirement of the members of the Delhi Fire Service who had not reached the rank of Head Leading Fireman at 53 years. It was held that the fire fighting personnel were engaged in a very risky operation which need all the ability and strength of mind and body and there might be a justification for fixing a different age of retirement in accordance with the law, however, when the M.C.D. itself has treated Rules 12 and 14 of the Service Rules, 1945 (Delhi Fire Service Rules) as having been impliedly repealed by the promulgation of the said Central and Appeal Rules, 1959, Gratuity Regulations, 1959 and Provident Fund Regulations, 1952 impliedly repealed Rule 13 of the Service Rules, 1945 there could not be different age of retirement for employees engaged in two different wings of the Corporation. The judgment of the learned Single Judge of this Court was challenged by way of an appeal before the Division bench. The Division Bench by its judgment dated 6th April, 1979 dismissed the Letters Patent Appeal with the observations that the only way for the Municipal Corporation of Delhi to ensure that the retirement age of the members of the Fire Fighting Services was not as high as the retirement age of the other employees of the Municipal Corporation of Delhi including the employees of the fire fighting personnel, was to amend the regulations to make it clear that there was no intention to increase the age of fire fighting personnel above 53 years. The Special Leave Petition filed against the judgment of the Division Bench was dismissed by the Supreme Court.
5. Pursuant to the liberty given by the Division Bench of this Court, the Municipal Corporation of Delhi proposed an amendment to be made in Regulation 3 of the Service Regulations by adding the proviso that the Regulation were applicable to the employees of the Delhi Fire Service subject to the limitation and condition that the age of retirement of the operational staff up to the rank of Leading Fireman so far as they related to the age of retirement, shall not apply to such operational staff of the Delhi Fire Service. On 21.12.1979, the Standing Committee resolved to refer the matter back to the Commissioner for further report in the light of the discussions held in the meeting of the Committee. On 29th August, 1980, letter from the Commissioner was placed before the Corporation stating that the age of superannuation for operational staff was 58 years in the states of Uttar Pradesh, Maharashtra, Andhra Pradesh, Tamil Nadu and West Bengal. However, it was observed in the letter that while the age of the retirement of the fire fighting personnel up to the rank of leading fireman in other States continued to be the same as it was initially at the time of establishment of the fire fighting service, the same was not the case in respect of the Delhi Fire Service personnel and lower age of retirement was fixed in respect of the Delhi Fire Service personnel with a view to maintain efficiency in service of its personnel, who were engaged in extremely risky operation where they needed all the ability and strength of mind and body.
6. In the meantime the Corporation was superceded by the Government and all the powers of the Corporation stood rested in the Commissioner and acting on his own recommendations, a Notification was published in the Delhi Gazette on 21st May, 1981 amending the Delhi Municipal Corporation Service Regulations providing that the age of retirement of the operational staff of the Delhi Fire Service shall be 53 years. This Notification was challenged by the personnel of the Delhi Fire Service by filing a writ petition in this Court. By judgment passed on 2nd February, 1983, in CWP No.2678/1981 this Court allowed the writ petition and held that there was no justification for the age of retirement being lower for the operational staff of the Delhi Fire Service. This judgment was challenged in the Supreme Court by way of Special Leave Petition and learned counsel is not aware about the fate of the said appeal. The fact, however, remains that from 1979, the DFS personnel superannuate on attaining the age of 58 years.
7. The respondent being aggrieved by his retirement at the age of 53 years, raised an industrial dispute and the matter was, accordingly, referred for adjudication to Labour Court-I with the following terms of reference: –
“Whether the retirement from services of Shri Khem Chand is illegally and unjustifiable and if so, to what relief is he entitled and what directions are necessary in this respect?”
8. After giving opportunity to the parties to lead evidence and after hearing them, the Labour Court by the impugned award has held that the respondent was retired from service at the age of 53 years illegally and without any justification and he was entitled to continue in service till the age of 58 years and he could not be superannuated till he attained the age of 58 years. It was further held by the Labour Court that the respondent would be deemed to be in service till he attained the age of 58 years and as he was admittedly retired at the age of 53 years, he would be entitled to all benefits of his retirement including back wages for the period of five years of deemed continuous service. Award of the Labour Court has now been challenged by the petitioner by filing the present Writ Petition.
9. The contention of learned counsel for the petitioner mainly is that since the respondent had not worked for the period of five years, he was not entitled for back wages for that period and as the Delhi Fire Service has since been transferred to the Government of National Capital Territory of Delhi on 10th November, 1994, the award without impleading the Government of National Capital Territory of Delhi is not valid.
10. I have given my thoughtful consideration to the arguments advanced by learned counsel for the petitioner but I have not been able to make myself agreeable with the same. At the relevant time, when the petitioner was made to retire at the age of 53 years, the Delhi Fire Service was a part of the Municipal Corporation of Delhi. Even for a period of next five years when the respondent ought to have retired on attaining the age of 58 years, the Delhi Fire Service was a part of the Municipal Corporation of Delhi. That being the position, it was the Municipal Corporation of Delhi, which was liable to pay the wages, if any, of the respondent if it was ultimately held that he was entitled to continue in service up to 58 years. There is thus no force in the contention of learned counsel for the petitioner that the reference in the absence of the Government of National Capital Territory of Delhi was not a valid reference or that the award could not have been passed without impleading the Government of National Capital Territory of Delhi.
11. Coming now to the second contention of the petitioner that the respondent having not worked for the period up to which he ought to have worked, he was not entitled to any wages. This argument has also no force and has been noted to be rejected. This Court has consistently held in its earlier judgments that immediately on the amendment of Fundamental Rules increasing the age of retirement to 58 years, the employees of the Municipal Corporation of Delhi were entitled to continue in service till that age. The Regulations, according, to this Court fixing the age of retirement as 53 years in the case of fire fighting employees of the Delhi Fire Service had ceased to exist on the amendment of the Fundamental Rules increasing the age of retirement up to 58 years. Amendments made in the regulations that the amended F.R. Or the amended regulations will not apply to fire fighting personnel of the D.F.S. was also struck down by this Court vide its judgment dated 2nd February, 1983. The effect of the same was that even the amended Rules did not come into existence and the respondent, therefore, had a right to continue in service up to the age of 58 years and he having been retired on his attaining the age of 53 years, the action of the petitioner in retiring him was illegal and unjustifiable. The petitioner cannot take advantage of its own wrong. It is not the voluntary act of the respondent to have not worked for a period of five years for which period he was entitled to work. It was because of an illegal action of the petitioner that the petitioner was prevented from working till the age of 58 years. Moreover, this point was never agitated by learned counsel for the respondent before the Labour Court. It is a disputed question of fact as to whether or not the respondent had ever offered himself to work after the judgment of this Court passed on 17th February, 1979. Had this been raised, the Labour Court would have given its finding thereon. This plea having not been taken before the Labour Court, the petitioner cannot be permitted to raise it for the first time in the present writ petition.
12. For the foregoing reasons, I do not find any merits in this petition and the same is, accordingly, dismissed with no order as to costs.