Delhi Transport Corporation vs Devinder Singh
2008 Latest Caselaw 1621 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     WRIT PETITION (CIVIL) 19713 OF 2004

                             Reserved on :          21st August, 2008.
                                                      th
                          Date of Decision :     11 September, 2008.

      DEVINDER SINGH                                         ..... Petitioner

                           Through:    Mr. Anil Mittal, Adv.

                    versus

      DELHI TRANSPORT CORPORATION                          ..... Respondent
                           Through:    Mr. G.S. Aneja, Adv.


                                        and

      WRIT PETITION (CIVIL) 781 OF 1998

      DELHI TRANSPORT CORPORATION                            ..... Petitioner

                           Through:    Mr. G.S. Aneja, Adv.

                    versus

      DEVINDER SINGH                                       ..... Respondent

                           Through:    Mr. Anil Mittal, Adv.


%     CORAM:
      HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

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


                              JUDGMENT

SIDDHARTH MRIDUL, J.

1. By this judgment I propose to dispose of two writ petitions

being Writ Petition (Civil) No. 19713 of 2004 and Writ Petition (Civil)

No. 781 of 1998. The first writ petition has been filed by the workman

under Article 226 of the Constitution of India, praying for a direction

to the Delhi Transport Corporation (hereinafter 'Corporation') to

reinstate him with back wages and other consequential benefits after

rejection of the application filed by the Corporation under Section

33(2))(b) of the Industrial Disputes Act 1947 (in short 'ID Act') vide

order dated 14th February, 1997, while in the latter the Corporation

challenges the correctness of the award dated 25th February, 1997 of

the Industrial Adjudicator holding that the services of the workman

were removed illegally and unjustifiably and directing reinstatement

with continuity of service & full back wages.

2. The brief facts necessary for the determination of the writ

petitions are adumbrated as follows:

(a) The workman was appointed as a Conductor with the

Corporation on 15th November, 1979 and allotted Badge

No. 13495. An industrial dispute was raised on account of

an agitation of the workers of the Corporation and the

terms of reference were as to whether the benefits given

by the 4th Pay Commission were to be extended to the

workers of the Corporation or not. This reference was

decided by the Industrial adjudicator on 4th October, 1994

(b) The workman was issued a charge sheet dated 26th

October, 1988 on the allegation that he had permitted one

lady passenger to travel without ticket. On the basis of the

alleged charge sheet an enquiry was conducted and the

workman was held guilty.

(c) Vide order dated 5th May, 1989 the workman was removed

from service. Since an industrial dispute was pending, the

Corporation filed an application under Section 33(2)b of

the Industrial Disputes Act, 1947 before the Industrial

Adjudicator, Delhi seeking approval of the order of

workman's removal.

(d) The workman also simultaneously raised an industrial

dispute in this respect, which was referred for

adjudication to the Industrial Adjudicator.

(e) The Industrial Adjudicator vide order dated 14th February,

1997 rejected the application under Section 33(2)(b) of

the ID Act filed by the Corporation seeking approval of the

removal order.

(f) The Industrial Adjudicator vide a separate award dated

25th February, 1997 decided the reference in the industrial

dispute raised by the workman in his favour and directed

reinstatement with full back wages and continuity of

service.

(g) The corporation did not assail the order of the Industrial

Adjudicator dated 14th February, 1997 whereby its

application seeking approval of the order of removal of the

workman from his services had been rejected.

(h) The Corporation has however challenged the award dated

25th February 1997, whereby the reference in the

industrial dispute raised by the workman was determined

in his favour and it was directed that he be reinstated with

full back wages and continuity of service.

3. Mr. Anil Mittal, learned counsel appearing on behalf of the

workman submits that the issue in the present petition is covered by

the judgment of the Supreme Court in Jaipur Zila Sahakari Bhoomi

Vikas Bank Ltd. vs. Ram Gopal Sharma and Others reported as

(2002) 2 SSC 244, whereby the Supreme Court while dealing with the

question of non-approval of the order of discharge or dismissal and its

consequences held that:

14. 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 the authority under the said provision. In other words, this relationship comes to an end de jure 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 his 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 order 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 straightaway 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.

Counsel, therefore, urged that in view of the ratio in Jaipur Zila

Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and

Others (supra), the workman was entitled to be reinstated with full

back wages and continuity of service, particularly since the

Corporation had not challenged the order dated 14th February, 1997

whereby its application under Section 33(2)(b) of the ID Act for

approval of order of workman's removal had been rejected, thereby

rendering that order final and consequential relief unimpeachable.

4. On the other hand, on behalf of the Corporation, it is not

disputed that the issue arising in the present case stands covered by

the judgment in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs.

Ram Gopal Sharma and Others (supra), but it is, however,

submitted that the payments made to the workman in terms of order

of this Court dated 1st May, 2002, should be adjusted while directing

the payment of back wages. Mr. Anil Mittal, learned counsel

appearing on behalf of the workman submits that there can be no

quarrel with such an adjustment being directed both in law and in

the facts of the case and concedes that there may be a direction for

the adjustment of the amounts paid to the workman in terms of the

order of this Court dated 1st May, 2002, whereby the application of

the workman under Section 17B of the ID Act was granted and

payment of last drawn wage directed during the pendency of the writ

petition.

5. In the present case, it is seen, that the Industrial Adjudicator

refused to grant approval to the application made by the Corporation

for the action taken for the removal of the workman from his service.

On such refusal to accord approval the Corporation did not carry the

order of rejection in appeal, thereby allowing it to become final and

binding. In such an eventuality it obviously follows that the workman

continued to be in service of the Corporation as if the order of

removal had never been passed. Consequently, the workman became

entitled to all the benefits available, as being deemed to have

continued in service. This being the position there was no need of a

separate order for the grant of reinstatement with consequential

benefits to the workman, and any such order or direction was

superfluous and unnecessary. In other words, a challenge to such a

separate order without a challenge to the order rejecting the

application for approval, which had become final, is of no avail, for

the reason that such an approach would render nugatory the

protection given to the workman by the statutory provision. Even

otherwise, it is observed that, the only submission made on behalf of

the Corporation was that the amount of payments disbursed to the

workman in terms of the order of this Court dated 1st May, 2002,

should be adjusted while directing the payment of full back wages to

the workman. No other point was raised on behalf of the Corporation.

6. For the reasons abovementioned and in the facts and

circumstances of the case, I allow the first writ petition filed by the

workman and dismiss the other writ petition on behalf of the

Corporation. In the result, the Corporation is directed to reinstate the

workman with full back wages and continuity of service from the date

of the order of removal within a period of two months from today. In

computing the arrears of back wages payable to the workman the

Corporation shall be entitled to adjust the aggregate sum of the

amounts paid to the workman pursuant to and in terms of the order

of this Court dated 1st May, 2002. The writ petitions are disposed of

accordingly without any order as to costs.

SIDDHARTH MRIDUL, J.

September 11, 2008 mk