Surinder Pal vs Management Of Delhi Transport ...
2008 Latest Caselaw 996 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                     LPA No.140/2008

Surinder Pal                                .....Appellant
                      Through: Mr.H.K. Chaturvedi, Advocate

                           Versus

Management of Delhi Transport Corporation...Respondent
                    Through: Ms.Arati Mahajan Shradha, Adv.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR

1.Whether reporters of the local news papers be allowed to see
the judgment?n
2.To be referred to the Reporter or not ?y
3. Whether the judgment should be reported in the Digest ?y

                           ORDER

11.7.2008

1. Admit.

2. Learned counsel appearing for the respondent waives

service. By consent the appeal is taken up for hearing.

3. This appeal is directed against the judgment and order

dated 17th July, 2007passed by the learned single Judge setting

aside the award of the Tribunal directing reinstatement of the

workman with back wages.

4. The appellant was working as a Conductor with the

respondent. He was charge-sheeted on 10th January, 1992

LPA No.140/2008 page 1 of 13 because of his continuous unauthorised absence from duty with

effect from 18th July, 1991. An enquiry was conducted as per

rules and regulations and in the enquiry the appellant was found

guilty of the charge. The Depot Manager issued a show cause

notice to the appellant dated 9th April, 1992 as to why he should

not be removed from service and thereafter an order of

termination of service of the appellant was passed. The

respondent made an application under Section 33(2)(b) of the

Industrial Disputes Act, 1947 (for short "the Act") to the Industrial

Tribunal for approval of the decision of removal of the appellant

from service. The Industrial Tribunal vide its order dated 10th

February, 2000 held that all the ingredients of the provisions of

Section 33(2)(b) of the Act are established and accorded approval

to the termination of the workman. One of the issues in the

approval application was legality and validity of the enquiry,

which came to be decided in favour of the respondent.

5. The appellant thereafter raised an industrial dispute and

filed an application before the Industrial Tribunal under Section

10 of the Act, which was numbered as ID No.214/2001. In the ID,

the Industrial Tribunal framed following issues:

LPA No.140/2008 page 2 of 13 "1. Whether fair and proper enquiry was conducted by the management?

2. If the first issue fails whether workman has committed misconduct?

3. Whether due process was adopted while passing the order of removal and one month wages were remitted to workman?

4. As per terms of reference."

6. The Industrial Tribunal gave a finding in respect of issue

No.1 that proper enquiry was not conducted and also held the

other issues against the respondent and passed the award

directing reinstatement of the workman with full back wages.

7. In the writ petition filed by the respondent - management,

the learned single Judge held that since the order passed by the

Industrial Tribunal under Section 33(2)(b) of the Act was not

challenged by the appellant and attained finality, the issue of

enquiry being fairly conducted by the respondent could not be re-

agitated and is barred by the principles of res judicata. Relying

upon the observations of the Supreme Court in B.B. Coal

Company v. Ram Parvesh AIR 1964 SC 486, the learned single

Judge held that the Industrial Tribunal is bound by earlier findings

given between the parties in respect of the same dispute and

LPA No.140/2008 page 3 of 13 same issues. Consequently, the award of the Industrial Tribunal

came to be set aside.

8. The short question which falls for our consideration is

whether the findings recorded by the Industrial Tribunal regarding

legality and validity of the enquiry in proceeding under Section

33(2)(b) of the Industrial Disputes Act would operate as res

judicata. The plea of the respondent, which has been accepted

by the learned single Judge, is that the jurisdiction under Section

33(2)(b) and Section 10 of the Act is identically the same and,

therefore, any finding given in application under Section 33(2)(b)

of the Act for approval for the action of termination must act as

res judicata if and when such a dismissal is subject matter of any

reference in a proceeding under Section 10 of the Act.

9. We are unable to agree with the view taken by the learned

single Judge. The plea of res judicata has been raised and

negatived in a series of judgments by the Supreme Court. In

Atherton West and Company Ltd. v. The Suti Mill Mazdoor

Union and others [1953-II LLJ 321] on the basis of C. (23) of the

Notification of U.P. Government under the U.P. Industrial Disputes

Act, which was in pari material to Section 33 of the Industrial

Disputes Act, 1947 as it stood at that time and corresponds to the

LPA No.140/2008 page 4 of 13 present Section 33(i) an argument was raised that the order

made by the additional Regional Conciliation Officer giving the

management permission to dismiss some of the workmen was

final and conclusive in regard to the appellant's fight to dismiss

them from their employment and, therefore, dismissal by the

appellant could not be the foundation of an industrial dispute

which could be referred to the conciliation Board and the Board

would have no jurisdiction to entertain the same and the award,

therefore, was void. Rejecting this contention, the Supreme

Court observed at as follows:

"16. It is clear that clause 23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the employer, his agent or manager could only discharge or dismiss the workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned. Even if such written permission was forthcoming the employer, his agent or manager might or might not discharge or dismiss the workman and the only effect of such written permission would be to remove the ban against the discharge or dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer or the Assistant Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the discharge or dismissal of the workman and the employer, his

LPA No.140/2008 page 5 of 13 agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial Court would be, with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned was not an enquiry into an industrial dispute as to the non- employment of the workman who was sought to be discharged or dismissed, which industrial dispute would only arise after an employer, his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned. This was the only scope of the enquiry before the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and the effect of the written permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the employer, his agent or manager to discharge or dismiss the workman during the pendency of the proceedings. ..........

17. ......... Once the written permission was granted by the officer concerned, the ban against the discharge or dismissal of the workman would be removed and the employer, his agent or manager could in the exercise of his discretion discharge or dismiss the workman but in that event an industrial dispute within the meaning of its definition contained in section 2(k) of the Industrial Disputes Act, 1947, would arise and the workman who had been discharged or dismissed would be entitled to

LPA No.140/2008 page 6 of 13 have that industrial dispute referred to the Regional Conciliation Board for enquiry into the same. That right of the workman to raise an industrial dispute could not be taken away in the manner suggested by Shri C. K. Daphtary by having resort to the provisions of clauses 23 and 24(1) aforesaid. That right was given to the workman by the terms of the Industrial Disputes Act, 1947, and the Uttar Pradesh Industrial Disputes Act XXVIII of 1947, and would remain unaffected by any of the provisions hereinbefore referred to."

10. In The Automobile Products of India Ltd. v.Rukmaji

Bala and ors. [(1955) I LLJ 346 SC], the Supreme Court held that

jurisdiction under Section 33 of the Industrial Disputes Act is only

to impose a ban on the right of the employer and the only thing

that the authority is called upon to do is to grant or withhold the

permission i.e. to lift or maintain the ban. With regard to the

scope of the enquiry under Section 33 of the Act, the Court held

that the Tribunal before whom an application is made under that

Section has not to adjudicate upon any Industrial dispute arising

between the employer and the workman but has only got to

consider whether the ban which is imposed on the employer in

matter of altering the conditions of employment to the prejudice

of the workman or his discharge or punishment whether by

dismissal or otherwise during the pendency of the proceedings

LPA No.140/2008 page 7 of 13 therein referred to should be lifted. A prima facie case has to be

made out by the employer for lifting of such ban and the only

jurisdiction which the Tribunal has is either to give such

permission or to refuse it, provided the employer is not acting

mala fide or is not resorting to any unfair practice of

victimisation.

11. Notwithstanding this clear position of law, an effort was

again made before the Supreme Court to urge that a decision

given while approving or refusing permission for dismissal would

amount to res judicata in subsequent adjudication when a

reference is made under Section 10. This plea was expressly

negatived in Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup

and others [(1957) I LLJ 17 SC].

12. In M/s G. Mckenzie & Co. Ltd. v. Its Workmen and

others [AIR 1959 SC 389], the Supreme Court expressly rejected

the argument that the findings of the State Industrial Tribunal in

proceedings under section 33 of the Act which were confirmed by

the Labour Appellate Tribunal barred the right of the

management of the appellant company to start a fresh enquiry in

respect of the same incident which formed the subject matter of

the previous enquiry. The Court observed thus:

LPA No.140/2008 page 8 of 13 "16. ...... There is no force in this contention, which seems to be based on a misapprehension as to the nature and scope of proceedings under section 33. That section does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. And in deciding whether permission should or should not be given, the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen the employer makes out a prima facie case. The object of the section is to protect the workmen in pending industrial disputes against intimidation or victimisation. As said above principles governing the giving of permission in such cases are that the employer is not acting mala fide, is not resorting to any unfair labour practice, intimidation or victimisation and there is no basic error or contravention of the principles of natural justice. Therefore when the Tribunal gives or refuses permission it is not adjudicating an industrial dispute, its function is to prevent victimisation of

LPA No.140/2008 page 9 of 13 a workman for having raised an industrial dispute. The nature and scope of proceedings under section 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the employer dismisses or punishes the workmen. Atherton West & Co. Ltd. Kanpur, v. Suti Mill Mazdoor Union, 1953 S.C.R. 780 at p. 788: (AIR 1953 SC 241 at p.244); (S) AIR 1957 SC 82.

17. ..... .... .... .... .... .... .... ....

18. As the purpose of section 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under section 33 would not operate as res judicata and bar the raising of an industrial dispute nor is there anything in the section itself or in the findings arrived at by the Industrial Tribunal in section 33 proceedings dated 6th June, 1954 or of the Labour Appellate Tribunal dated 29th March, 1955 which would debar the appellant company from holding the second enquiry or dismissing the workmen provided the principles above set out are complied with."

LPA No.140/2008 page 10 of 13

13. Our attention is also drawn to the Division Bench

judgment of this Court in Delhi Transport Corporation v. Ram

Kumar and another [(1982) II LLJ 191 Delhi], where the Division

Bench after an exhaustive consideration of the relevant decisions

of the Supreme Court rejected the argument that the findings

recorded under Section 33(2)(b) of the Act would operate as res

judicata in industrial dispute raised by the workman under

Section 10 of the Act.

14. It is thus a settled law that notwithstanding the

permission accorded by the Industrial Tribunal, it is open for the

workman to raise an industrial dispute under Section 10 of the

Act with regard to the termination of the services for which

approval had already been obtained from the Industrial Tribunal

under Section 33(2)(b) of the Act. Therefore, the findings

recorded in a proceeding under Section 33(2)(b) of the Act cannot

operate as res judicata. The interpretation adopted by the

learned single Judge would make the whole exercise of industrial

adjudication under Section 10 of the Act futile and meaningless.

The scope of Section 33 of the Act is extremely limited and all

that is done under Section 33 of the Act is to give or refuse

LPA No.140/2008 page 11 of 13 permission and there is no industrial adjudication by the Tribunal

in those proceedings. The Tribunal is called upon to adjudicate

the industrial dispute only when the matter is referred under

Section 10 of the Act to the Tribunal.

15. The reliance placed by the learned single Judge on the

judgment of the Supreme Court in B.B. Coal Company v. Ram

Parvesh (supra) is completely misconceived. In that case the

appeal was against the dismissal of a workman, which was

referred under Section 10 of the Act. The contention on behalf of

the workman was that no finding had been given by the Tribunal

that the enquiry was proper and this vitiated the award and that

the dismissal was mere victimization. In rejecting this the

Supreme Court observed that the Tribunal had apparently held

that the enquiry was proper though it has not said so in so many

words in its award, nor did it find that the finding of the enquiry

officer were perverse or baseless. The Court, however, also added

"that it could hardly be otherwise as it had already approved of

the action taken on an application made under Section 33(2)(b)

of the Act and if the enquiry had not been proper the Tribunal

would not have approved of the dismissal." From these

observations it has been inferred that if an approval has been

LPA No.140/2008 page 12 of 13 given under Section 33(2)(b), the workman is not entitled to re-

agitate the issue in Industrial Tribunal. The issue of scope of

Section 33(2)(b) of the Act did not even arise nor discussed in

that case. In fact the Court came to the conclusion that the

Tribunal had given a finding that the enquiry was valid though it

has not said so in so many words. In our considered opinion, the

view taken by the learned single Judge is against the settled law

laid down by various Supreme Court decisions both before and

after the decision in B.B. Coal Company v. Ram Parvesh

(supra) and notwithstanding the approval obtained under Section

33(2)(b) for the dismissal of an employee, the dispute can form

the subject of an industrial dispute and of a reference under

Section 10 of the Act.

16. For the forgoing reasons, the order of the learned single

Judge is set aside. However, there cannot be any order as to

costs.

                                      CHIEF JUSTICE



                                      S.MURALIDHAR
JULY 11, 2008                            (JUDGE)
"nm"



LPA No.140/2008                                         page 13 of 13