Rajinder Singh vs Dtc And Ors.
2003 Latest Caselaw 530 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule.

2. With the consent of the parties, the writ petition is taken up today for final hearing.

3. This writ petition seeks a direction to the respondent No. 1 DTC in prayer (b) to reinstate the petitioner with continuity of service in view of the Order of the Industrial Tribunal dated 4th May, 2001 which declined the application made by the respondent No. 1 under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act').

4. It is not in dispute that the said Order dated 4th May, 2001 has not been challenged by the respondent No. 1/DTC. The only defense taken by the DTC in the present writ petition is that subsequent dismissal was challenged by the petitioner by raising an industrial dispute and the matter is still pending before the Industrial Tribunal. In my view this is no ground to deny reinstatement to the petitioner. In fact the industrial dispute raised subsequently by the petitioner has really become anfractuous as the dismissal of the application under Section 33(2)(b) of the Act has not been challenged by the DTC.

5. Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in M.D. Tamil Nadu State Transport Corporation Vs Neethivilangan Kumbakonam 2001 LAB. I.C. 1801 to contend that whether or not the application under Section 33(2)(b) has been accorded approval, the employer is bound to treat the employee as continuing in service and give him all consequential benefits. The relevant position of law laid down in Para 16 of the aforesaid judgment which reads as under:

"From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains orders of approval from the Tribunal. By passing the order of discharge or dismissal de facto relationship of employer and employee may be ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a instant case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed under Section 33(2)(b) of the Act on merit the employer is bound to the treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employee the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunal's rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in Section 33(1) irrelevant. In the present case as noted earlier the Tribunal on consideration of the matter held that the employer had failed to establish a prima facie case for dismissal/discharge of the workman, and therefore, dismissed the application filed by the employer on merit. The inevitable consequence of this would be that the employer was duty bound to treat the employee as continuing in service and pay him his wages for the period, even though he may be subsequently placed under the suspension and an enquiry initiated against him."

6. In view of the aforesaid judgment of the Hon'ble Supreme Court which fully applies to the facts of the present case, the petitioner is entitled to succeed in the present writ petition. Learned counsel for the petitioner states that the subsequent industrial dispute about the dismissal, preferred by the petitioner shall be withdrawn within eight weeks from today.

7. Accordingly, the writ petition is allowed and the respondent No. 1 is directed to reinstate the petitioner workman with continuity of service, full backwages and all other consequential benefits within six weeks from today and the petition stands disposed of accordingly.