Delhi Transport Corporation ... vs Shri Ramesh Chander S/O Shri Man ...
2004 Latest Caselaw 885 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner is aggrieved by an order dated 26th February, 2003 passed by Industrial Tribunal-II in O.P. 389/93, which was an approval application filed by the Petitioner under the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short the Act).

2. The Respondent workman was a driver with the Petitioner. The allegation against him was that from 1st April, 1991 to 31st December, 1991, he was absent for 183 days. One Asha Rani submitted a report on 23rd March, 1992 in this regard.

3. On the basis of Asha Rani's report, a charge sheet dated 14th July, 1992 was issued to the Respondent workman. It was alleged that he had misconducted himself within the meaning of paragraph 19(f), (h) and (m) of the Standing Orders governing the conduct of the employees of the Petitioner. These provisions read as follows:-

19. GENERAL PROVISIONS: Without prejudice to the provisions of the foregoing Standing Orders, the following acts of commission and omission shall be treated as misconduct:

(a) to (e) xxx xxx xxx

(f) Habitual breach of any rules, law, instructions or orders etc. applicable to the employees of the Authority.

(g) xxx xxx xxx

(h) Habitual negligence of duties and lack of interest in the Authority's work.

(i) to (l) xxx xxx xxx

(m) Any other activity not specifically covered above, but which is prima facie detrimental, to the interests of the organisation.

4. Since the Respondent workman did not file any response to the charge sheet, he was proceeded against ex parte and it was held by the Enquiry Officer on 9th December, 1992 that the Respondent workman had remained absent for a period of 183 days between 1st April, 1991 and 31st December, 1991. It was held that this shows that the Respondent workman was not taking any interest in his work.

5. The disciplinary authority thereafter issued a notice dated 18th December, 1992 to the Respondent workman to show cause why he should not be removed from service. Even though the show cause notice was sent to his residential address, it came back undelivered. A daftari was thereafter deputed to serve the show cause notice on the Respondent workman and on 13th May, 1993 it was received by his sister-in-law at his residential address. The Respondent workman did not reply to the show cause notice and, therefore, an order was passed by the disciplinary authority removing him from service. This was duly communicated to the Respondent workman by a letter dated 28th May, 1993.

6. Thereafter, the Petitioner filed an application under Section 33(2)(b) of the Act seeking approval of the action taken against the Respondent workman.

7. The learned Tribunal framed a preliminary issue on 2nd September, 1996 to the effect whether a legal and valid enquiry had been held against the Respondent workman. By an order dated 7th August, 2002 this issue was decided against the Petitioner. On the same date, the following issues were framed by the learned Tribunal in respect of the main controversy in the case:-

1. Whether the Respondent committed misconduct as alleged against him?

2. Whether the Petitioner remitted full one month wage to the Respondent at the time of his removal from service?

3. Relief.

8. The second issue was decided in favor of the Petitioner and there is no controversy in this regard.

9. In so far as the first issue is concerned, the only reason given by the learned Tribunal for deciding against the Petitioner is that the period of absence of the Respondent workman had been treated as leave without pay. This, according to the learned Tribunal shows that the absence of the Respondent workman does not amount to misconduct. Consequently, the approval application filed by the Petitioner was rejected.

10. Over the last few years, there has been some controversy, particularly in this Court, whether an order passed in respect of a workman granting him leave without pay amounts to condoning his absence and thereby leading to a conclusion that no misconduct was committed by the workman. A learned Single Judge of this Court decided the issue in favor of the Petitioner but a Division Bench set aside the view of the learned Judge.

11. Now, the issue has been conclusively settled by the Supreme Court in Delhi Transport Corporation vs. Sardar Singh, 2004 (6) SCALE 613. The issue, therefore, is no longer res integra.

12. In Sardar Singh the Supreme Court considered Paragraphs 4 and 19(h) of the Standing Orders applicable to the employees of the Petitioner. Paragraph 4 reads as follows:-

4. Absence without permission:-

(1) An employee shall not absent himself from his duties without having first obtained the permission from the Authority or the competent officer except in the case of sudden illness. In the case of sudden illness he shall send intimation to the office immediately. If the illness lasts or is expected to last for more than 3 days at a time, applications for leave should be duly accompanied by a medical certificate, from a registered medical practitioner or the medical Officer of the D.T.S. In no case shall an employee leave station without prior permission.

(ii) Habitual absence without permission or sanction of leave or any continuous absence without such leave for more than 10 days shall render the employee liable to be treated as an absconder resulting in the termination of his service with the Organisation.

13. While dealing with the above provisions, the Supreme Court held that when an employee absents himself from duty, without sanctioned leave for a long period, it prima facie shows his lack of interest in his work. Consequently, in a given case the Petitioner can, on the basis of the record, come to a conclusion that an employee is habitually negligent in his duties and exhibits a lack of interest in his work. It was further said that the conclusion regarding negligence and lack of interest could be arrived at by looking at the period of absence, more particularly, when the same is unauthorised. The burden is actually on the employee who claims that there is no negligence or lack of interest to establish it by placing relevant material.

14. The Supreme Court held that treating unauthorised absence as leave without pay is not the same as sanctioned or approved leave. Consequently, the Supreme Court came to the conclusion that in such cases the learned Tribunal was not justified in refusing to accord approval to the order of dismissal or removal passed by the Petitioner.

15. In the present case there is no dispute that the Respondent workman did not obtain any proper sanction for his leave. The mere submission of a leave application or a medical certificate is of no consequence unless the leave is duly approved or sanctioned.

16. In view of the decision of the Supreme Court referred to above, since the learned Tribunal has refused to grant approval only on the ground that the period of absence was treated as leave without pay which did not amount to misconduct, the absence being undisputed, there is no option but to set aside the order passed and to accord approval to the application filed by the Petitioner under Section 33(2)(b) of the Act.

17. The question that now arises is with regard to the relief to be granted to the Petitioner. This depends on the status of the Respondent workman during the intervening period.

18. The Constitution Bench in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and Others, the following question:-

''If the approval is not granted under Section 33(2)(b) of the Industrial Disputes Act, 1947, whether the order of dismissal becomes ineffective from the date it was passed or from the date of non-approval of the order of dismissal and whether failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative?''

19. During the course of its discussion on the above question, the Supreme Court also considered the converse proposition, namely, if approval is granted under Section 33(2)(b) of the Act, from which date does it become effective.

20. The Supreme Court held that an order of dismissal is inchoate or incomplete until it is approved under the provisions of Section 33(2)(b) of the Act. When approval is granted, it relates back to the date of the order of dismissal or discharge. In such a case, an employee is entitled to make a complaint under Section 33-A of the Act challenging the order granting approval. If approval is not granted, it will be deemed as if the order of dismissal or discharge has never been passed. The effect of this is that the employee is deemed to have continued in service entitling him to all the benefits available without the need for passing a separate or specific order for his reinstatement.

21. It appears to me on the basis of the above, that during this period, the workman only has an accrued right to get his wages and other benefits. This right gets crystallized or vested in the workman when the approval application is rejected. Consequently, the moment an approval application is rejected, the workman becomes automatically entitled to be put back in his job and to get his wages and other benefits.

22. Unfortunately, this seldom happens in actual practice, at least in so far as the Petitioner (Delhi Transport Corporation) is concerned. It has been my experience that quite frequently the workman is in fact not reinstated, nor is he deemed to be in service, nor is he paid the wages due to him. But, if the workman is resourceful enough, he manages to get the monetary benefits due to him. There is nothing wrong in that because in law, he is entitled to the monetary benefits. The problem, however, arise if the workman is ''less resourceful'' - he is then compelled to file a writ petition in this Court for a direction to the Petitioner to reinstate him and for his wages. Effectively, he is made to litigate further for enforcing what has already been held due to him and in the process the High Court is converted into an executing Court for orders passed by an industrial adjudicator! Surely, this was never intended to be a part of any of the functions of a writ Court. A few (amongst many) reported decision will bear this out.

23. (a) In Ram Kishan vs. Lt. Governor, National Capital Territory of Delhi and Anr., 2001 VII AD (Delhi) 949, even though an order of dismissal was not approved under Section 33(2)(b) of the Act, the Delhi Transport Corporation did not reinstate the workman compelling him to approach this Court for a direction for his reinstatement with full back wages. A learned Single Judge of this Court gave this direction.

(b) In Rajender Singh vs. Delhi Transport Corporation and Anr.,, an approval application filed by the Delhi Transport Corporation was rejected by the industrial Tribunal. Yet the workman was not put back in service. A learned Single Judge of this Court did not entertain a writ petition filed by the workman for reinstatement on the ground that he had an alternative remedy under the Act. While setting aside the order of the learned Single Judge, a Division Bench of this Court held that the Delhi Transport Corporation was bound to implement the order of the Industrial Tribunal. Its non-implementation and keeping the employee unemployed was held to be arbitrary. Consequently, the Division Bench directed reinstatement of the workman with back wages and all other consequential benefits.

(c) In Randhir Singh vs. Delhi Transport Corporationand Anr., 2002 (62) DRJ 536 a learned Single Judge of this Court was compelled to issue a direction to the Delhi Transport Corporation to reinstate the workman with full back wages.

(d) In Rajinder Singh vs. DTC and Ors., the workman was not reinstated by the Delhi Transport Corporation in spite of the rejection of its application filed under Section 33(2)(b) of the Act. A learned Single Judge was compelled in his case also to direct reinstatement of the workman with full back wages and other consequential benefits.

(e) In Roshan Singh vs. Delhi Transport Corporation, , an application filed by the Delhi Transport Corporation under Section 33(2)(b) of the Act was rejected. Notwithstanding the order of rejection, the workman was not reinstated compelling him to file a writ petition in this Court. A learned Single Judge not only decided the case of Roshan Singh but along with that, six other writ petitions raising an identical issue were also decided, and in each one of them the Delhi Transport Corporation had failed to reinstate the workman. The learned Single Judge gave a direction for reinstatement and payment of arrears of emoluments and all other consequential benefits to the workmen in that batch of cases.

24. There are also several cases on the docket of this Court where, after a writ petition filed by a workman is entertained and notice issued to the Delhi Transport Corporation, then soon after the said Corporation receives notice, it files a writ petition, as a counterblast, challenging the order passed by the industrial adjudicator declining to grant approval. Not only does this increase the burden on this Court, but it also causes unnecessary harassment to the workman, who has then to tackle another litigation. These facts and instances have been mentioned to illustrate how the State machinery can be used to harass a hapless workman and also to demonstrate that the theory of the State being a model employer is only a myth.

25. So far as the present case is concerned, the order of dismissal was passed on 28th May, 1993. In terms of the decision of the Constitution Bench, the order of dismissal was incomplete or inchoate until the learned Tribunal rendered a decision on the approval application. On 26th February, 2003 the learned Tribunal declined to grant approval by the impugned order. The Respondent workman is, therefore, deemed to have been continuing in service as on 26th February, 2003 as if the order of dismissal was never passed.

26. The Respondent workman continued in service as such at least until 13th February, 2004 when the order dated 26th February, 2003 was stayed by this Court. Therefore, on these facts there cannot be any dispute that the Respondent workman is entitled to his wages and all other benefits at least up to 13th February, 2004 The question whether the Respondent workman would thereafter be entitled to any wages and other benefits has not been raised in this case by the Respondent workman and, therefore, it is not necessary for me to decide on his status beyond 13th February, 2004

27. Since I have now held that approval under Section 33(2)(b) of the Act was wrongly declined, the Respondent workman would stand dismissed with effect from 28th May, 1993 (the date of the dismissal order). This would be in accordance with the law laid down by the Supreme Court in Ram Gopal Sharma. However, if the law is applied literally and strictly, it will mean that the Respondent workman was wrongly paid his wages for this period (assuming he was so paid) and he should, therefore, refund the amount received by him from the date of his dismissal. I think this is too harsh and the Supreme Court could not have intended such a result.

28. It has been held on several occasions that the Act is a beneficial legislation and its provisions have to be construed liberally because it is a legislation enacted for the welfare of workers. [See for example The Workmen of M/s Firestone Tyre and Rubber Co. of India (P) Ltd. vs. The Management, ]. If one proceeds on this basis, it cannot be said by any stretch of imagination that the Act permits an employer to recover wages paid to a workman up to the date when approval under Section 33(2)(b) of the Act is declined or till the date when the order declining approval is stayed by the High Court. Therefore, one has to take a pragmatic and reasonable view of the matter, and after doing so, I am of the opinion that wages and other benefit paid to a workman, till the date when approval is declined and even thereafter until the date when the order declining approval is stayed by the High Court, are required to be paid to him, and if so paid, are not required to be refunded by him.

29. One of the factors that has weighed with me in arriving at this conclusion is that while dealing with cases such as the present, it is necessary to take into account not only the law of the land but also the vagaries of the Petitioner. There are occasions when the State first gives the monetary benefits to an employee (who is entitled to them as matter of right) and thereafter files a writ petition challenging an order declining to grant approval. Consequently, if it is held, as I have done, that the wages received by such an employee till the date when the order declining approval is stayed are not required to be refunded, then it will place a such a workman in an advantageous position as against a ''less resourceful'' employee who is not in a position to ensure that his wages are paid before a writ petition is filed. This is because a resourceful workman (the expression is not used derogatively) would have obtained the benefit of receiving his wages, which he does not have to refund, while a ''les resourceful'' workman would not get the benefit of receiving his wages, although he is similarly placed.

30. To get over this rather anomalous position, which is sometimes created by a less than impartial employer, I think it would be appropriate to hold that an employer should ensure that the wages and all other benefits due to an employee up to the date of consideration of the application for interim stay (if any such application is filed) are paid to the employee so that both a resourceful (again not used derogatively) and a ''less resourceful'' workman are placed on an equal footing by giving them their de wages. Therefore, it would be appropriate for the writ Court, while entertaining a writ petition under Article 226 and 227 of the Constitution against an order passed in favor of a workman under Section 33(2)(b) of the Act, to insist that the employer should pay all the wages and other benefits due to the workman at least so long as the impugned order continues to operate or be in force. This may cause some hardship to some employer, as in the present case, since the Petitioner here will have to pay wages and other benefits to the Respondent workman for almost 11 years, even though the Respondent workman did not put in any work during this period, and may have even been gainfully employed elsewhere; but, this is a necessary concomitant and result of the law, and the consequence of ignoring the wisdom of the Legislature, which requires (Section 33(5) of the Act) such applications to be decided without delay and, as far as possible, within 3 months. So far as the justice delivery system is concerned, I think it may have a beneficial effect in the long run in reducing frivolous litigation in this Court and also taking the workman out of the clutches of the whims and fancies of an employer, who may decide to challenge an order rejecting an approval application after a considerable lapse of time, leaving the workman high and dry until then.

31. Under the circumstances, it is held as under:-

1. The impugned order dated 26th February, 2003 is set aside. However, the Petitioner will pay to the Respondent workman, all wages and other benefits due to him until 13th February, 2004, that is, the date on which this Court stayed the impugned order. The payments should be made to the Respondent workman within six weeks from today.

2. When any industrial adjudicator declines to grant approval to an order of dismissal or discharge passed under Section 33(2)(b) of the Act, it is obliged to treat the workman as being on duty as per the law laid down by the Constitution Bench of the Supreme Court. Therefore, it must direct the employer to pay to the workman all wages and other benefits due to him until the date of the refusal order and it must also direct payment to be made within a specified and reasonable period of time.

3. When a writ petition is filed challenging an order passed by an industrial adjudicator declining approval under Section 33(2)(b) of the Act, the writ Court also is obliged to treat the Respondent workman as being on duty as per the law laid down by the Constitution Bench of the Supreme Court. Consequently, the Respondent workman is entitled to wages and all other benefits as a result of the refusal by the industrial adjudicator to grant approval under Section 33(2)(b) of the Act until the order of refusal is stayed by the writ Court. Therefore, the writ Court should insist, as a rule, that the employer should pay to the workman his dues until such time as the impugned order continues to operate.

4. When a writ Court sets aside the order passed by an industrial adjudicator declining approval under Section 33(2)(b) of the Act, it will take effect from the date the employer passed the initial order of dismissal or discharge. However, keeping in view that the Act is a beneficial legislation, it must not direct the Respondent workman to refund the amount received by him towards wages and other benefits.

32. Since in this case, the status of the Respondent workman after 13th February, 2004 is not an issue before me, I am not called upon to express any view in this regard.

33. The writ petition is disposed of in the above terms. There will be no order as to costs.