Delhi Transport Corporation vs Prem Chand Ex-Sweeper
2006 Latest Caselaw 2218 Del

JUDGMENT

Shiv Narayan Dhingra, J.

Page 0123

1. By this writ petition, the petitioner has challenged the order dated 9th August, 2004 passed by the Labour Court IX, Karkardooma, Delhi, whereby the Labour Court directed that the workman was entitled to reinstatement with full back wages.

2. Briefly, the facts are that the respondent/workman was working as a sweeper with the petitioner. He unauthorizedly remained absent from duty for 107 days without any intimation, application and permission from the competent authority between 1.1.1991 and 31.12.1991. A domestic enquiry was initiated against the respondent for the misconduct of unauthorized absence. The domestic enquiry started on 29.4.1993. As per the report of the enquiry officer, the misconduct against the respondent stood proved. A show cause notice was issued to the respondent as to why punishment of dismissal be not imposed on him looking into his past record. The disciplinary authority, after considering the circumstances, imposed punishment of removal from service and issued removal order dated Page 0124 20.8.1993 to the respondent and remitted one month's pay. An application under Section 33(2)(b) of the Industrial Disputes Act was also filed simultaneously. The respondent also raised an industrial dispute about his dismissal which was referred for adjudication to the Labour Court and was registered as ID No. 1045/1994.

3. In the proceedings under Section 33(2)(b) of the I.D. Act, it seems that the Labour Court imposed cost on the petitioner on one date for seeking adjournment for filing affidavit on behalf of the DTC, which was not paid by the petitioner on the next date of hearing. and the Labour Court dismissed the application of the petitioner on 2nd September, 1996 for non payment of the cost without going into the merits of the application. The ID, however remained pending. In the ID, the respondent made an application on 17th January, 2003 for disposal of the ID in view of the judgment of the Supreme Court in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. v. Sh. Ram Gopal Sharma and Ors. 2002(92) FLR 667(SC). By the impugned order, the application was allowed and the reference was answered against the petitioner on the basis of Jaipur Zila Sahkari Bhoomi Vikas Bank's case(Supra), holding that there was no need to decide the industrial dispute on merits since the application of the petitioner under Section 33(2)(b) of the I.D. Act was dismissed as a result, the relationship between the workman and the management continued, as if there was no dismissal of the workman. The Labour Court granted reinstatement with full back wages.

4. Learned Counsel for the respondent submitted that in view of the law laid down by the Supreme Court, he does not intend to file any counter and the case be heard for final disposal.

5. In Jaipur Zila Sahkari Bhoomi Vikas Bank's case(Supra), the Supreme Court held as under:

Where an application is made under Section 33(2)(b), Proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of Page 0125 the authority under the said provisions. In other words, this relationship comes to an end dejure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for this reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33A challenging the oder granting approval on any of the grounds available to him. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. (para 14)

The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merits and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the mater of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding Page 0126 the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization,, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment. (para 15)

6. Learned Counsel for the petitioner pleaded that for the negligence of the AR of the petitioner, the petitioner should not be made to suffer. The AR of the petitioner did not conduct the proceedings properly, did not pay the cost and the application under Section 33(2)(b) of the I.D. Act was dismissed only for non payment of cost. It was neither withdrawn nor decided on merits and the ratio of judgment given was, therefore, not applicable. He relied upon 2004(1) Scale Engineering Laghu Udyog Employees, Union v. The Judge, Labour Court and Ind. Tribunal and Anr. to bring home the point that the jurisdiction of the Labour under Section 10 was much wider than the jurisdiction of the Labour Court under Section 33(2)(b) of the I.D. Act. In proceedings for obtaining approval of the order of dismissal the only thing to be seen by the Labour Court is that whether the enquiry was conducted in accordance with the principles of natural justice and whether the prima facie case was made out against the respondent or not. If the enquiry is found not to have been conducted in accordance with the principles of natural justice, the employer has a right to to adduce evidence before the Labour Court, justifying its action. However, despite the Labour Court coming to a conclusion on the basis of evidence that the misconduct was proved, the decision of the Labour Court does not become res judicata for an Industrial Dispute under Section 10 of the I.D. Act and the Labour Court has to again go through the entire exercise of seeing whether the termination was legal or not. He also relied upon the 2005 Labour IC 2444 Management of Indian Aluminium Co. Ltd. Belgaum v. S. Nagaiah to press the point that the decision of the Labour Court in an application under Section 33(2)(b) of the I.D. Act was not res judicata for the Labour Court deciding ID under Section 10 of the I.D. Act and the Labour Court deciding ID has to act independently. The learned Counsel also submitted that granting full back wages to the workman was not justified even if the workman was directed to be reinstated in view of the latest judgment of this Court and the Supreme Court. He relied upon Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. 2005 SCC(LandS) 631, Supreme Court held:

In law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. It is not in dispute that Respondent 1 herein was appointed on a ad hoc basis; his services were terminated on the ground of a policy decision, as far back as on 24.1.1987. Respondent 1 had filed a written statement Page 0127 wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned Counsel for the appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in this evidence, the workman did not say that he continued to remain unemployed. In the instant case, the respondent herein had been reinstated from 27.2.2001. (para 6)

In Tapan Kumar Bhattacharya this Court noticed that there was no pleading or evidence as to whether the respondent therein was employed elsewhere during the long interregnum and in the fact situation obtaining therein, the appellant was directed to pay 50% of the back wages till the date of reinstatement. (Para 7)

Yet again in Jarina Bee this Court observed that the award of full back wages was not the natural consequence of an order of reinstatement. (para 8)

In Rahmat Ullah , a Bench of this Court held that as the respondent therein was out of service since 1990 as an ordinary worker, he must have been working elsewhere to earn his livelihood; and there was no material to show that he was not gainfully employed, direction to pay 50% of the back wages was made. (para 9)

In Ram Ashrey Singh v. Ram Bux Singh , questioning the order of termination after six years was considered to be one of the factors for denying an order of reinstatement with back wages to the workman. In the fact situation obtaining therein, it was held that ends of justice would be subserved if the appellants therein were directed to pay a sum of Rs. 35,000/- by way of compensation in addition to what has already been paid( See also Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh . (para 10)

In Indian Rly. Construction Co. Ltd. (2003) 4 SCC 602 this Court merely stated:(SCC pp.593-94, para 30).

30. Question then would be how the conflicting interests can be best balanced. By an interim order dated 5.5.2000 the appellant was directed to reinstate the respondent subject to an interim payment of Rs,.3 lakhs towards the back wages. Directions for reinstatment does nto authomaticlaly entitle an employee to full back wages. In Hindustan Tin Works (P) Ltd. v. Employees a three-Judge Bench of this Court laid down:(SCC p.86, para 11)

11. In the very nature of things there cannot be a straitjacket formula for awarding relief of back wages. All relevant considerations will enter Page 0128 the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular(see Susannah Sharp v. Wakefield 1891 AC 173, AC at p. 179) (para 14)

In Nicks(India) Tools this Court again in the fact situation obtaining therein refused to interfere with the discretionary jurisdiction exercised by the High Court particularly having regard to the fact that it was for the first time before the writ court, such plea was raised by way of additional evidence, which had been rejected. (para 15)

We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However , no just solution can be offered but golden mean may be arrived at. (para 16)

In view of the fact that the respondent had been reinstated in service and keeping in view the fact that he had not raised any plea or adduced any evidence to the effect that he remained unemployed throughout from 24.1.1987 to 27.2.2001, we are of the opinion that the interest of justice would be subserved if the respondent is directed to be paid 50% of the back wages. (para 17)

7. In view of the peculiar facts of this case where the petitioner failed to pay cost and the Labour Court dismissed the application under Section 33(2)(b) of the I.D. Act and the petitioner did not challenged the order of the Labour Court, dismissing the application under Section 33(2)(b) of the I.D. Act, I consider that the decision of the Labour Court in an I.D. under Section 10 of the I.D. Act, directing reinstatement of the petitioner was justified. However, grant of full back wages was not the natural consequence of an order of reinstatement. The respondent was working as a sweeper. He had not worked with the management for last 13 years. Moreover, giving him full backwages without there being any pleadings of unemployment and not taking alternative job by the respondent, would amount to rewarding the respondent for misconduct which otherwise stood proved, and allowing unjustified enrichment because of the negligence of the AR of the petitioner. Considering the decision of the Supreme Court in 2006(2) LLJ 104 State of M.P. and Ors. v. Page 0129 Arjun Lal Razzak; 2006(2) LLJ 215 : 2006(2) LLJ 244 Haryana State Electricity Development Corporation Ltd. v. Mamni cases, and the fact that there was no pleading of unemployment of the respondent, either before the Labour Court or before this Court, I consider that it would be appropriate that the respondent is directed to be reinstated with compensation of Rs. 50,000/- instead of full back wages. I, therefore, allow this writ petition only to the limited extent that the respondent will be reinstated and paid compensation of Rs. 50,000/-. No further orders as to cost as the respondent has been paid litigation expenses during the pendency of this writ petition.