Delhi Transport Corporation vs Shri Anup Singh
2009 Latest Caselaw 3259 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C.) No. 1771/2005

%                  Date of Decision: 19th August, 2009


# DELHI TRANSPORT CORPORATION
                                                    ..... PETITIONER
!                  Through: Mr. Ataul Haque, Advocate.

                                 VERSUS

$ SHRI ANUP SINGH
                                                          .....RESPONDENT

^                  Through: Mr. R.K. Nain, Advocate.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? NO

2. To be referred to the reporter or not?NO

3. Whether the judgment should be reported in the Digest?NO

S.N.AGGARWAL, J (ORAL) This is a writ petition filed by the DTC (hereinafter to be referred as

the petitioner) seeking to challenge the award dated 28.07.2004 in I.D.

No. 349/1998 directing reinstatement of the respondent with full back

wages.

2. Briefly stated the facts of the case relevant for the disposal of this

writ petition are that the respondent was employed as a Conductor with

the petitioner with effect from February 1984. He was served with a

charge-sheet on 20.11.1992, a true typed copy of which is Annexure P-2

at pages 28 & 29 of the Paper Book. The respondent vide said charge-

sheet was accused of mis-conduct within the meaning of paras 6, 7 &

19(b) & (m) of the Standing Orders governing the conduct of DTC

employees. The charge against the respondent was to the following

effect:

"On 20.10.2002, the respondent was performing his duty on Bus No. 6458 on inter-state route from Delhi to Ganga Nagar. The said bus was checked by the checking staff at 10:35 hours at Sharpur (Sirsa). The checking staff found that a group of four passengers was traveling in the bus without ticket. It was informed by the passengers that they had boarded in the bus at Fatehabad for going to Sirsa and had paid Rs. 35/- as fare to the respondent who did not issue tickets to them.

3. The respondent vide afore-mentioned charge-sheet was called

upon to give his response to the above-mentioned charge against him

within ten days and liberty was granted to him to inspect any document

relevant to the case from the records of the petitioner lying with the

Depot Manager within 24 hours of receipt of the charge-sheet. The

respondent gave his reply to the charge-sheet which was not found

satisfactory by the management of the petitioner. A domestic inquiry

into the charges was held against the respondent in which he was found

guilty. After considering the inquiry report and other attendant

circumstances, the Disciplinary Authorities decided to remove the

respondent from its service and accordingly the respondent was removed

from the service of the petitioner w.e.f. 08.04.1993.

4. Since a dispute with regard to a large number of DTC employees for

their removal from service on account of mass-strike was pending

adjudication before the Industrial Tribunal, the petitioner being the

management, filed an approval application under Section 33(2)(b) of the

the Industrial Disputes Act, 1947, before the Industrial Tribunal for

approval of its action for removal of the respondent from its service w.e.f.

08.04.1993. The approval sought for by the petitioner was declined by

the Industrial Tribunal vide order dated 27.04.2001 in O.P. No. 204/1993.

5. During pendency of the approval application before the Industrial

Tribunal under Section 33(2)(b) of the Industrial Disputes Act, 1947, the

respondent raised an industrial dispute with regard to his removal from

service of the petitioner and the said dispute was referred by the

Government for adjudication before the Industrial Tribunal on 10.08.1998

and was registered as I.D. No. 349/1998. The Industrial Tribunal passed

the impugned award dated 28.07.2004 and directed reinstatement of the

respondent with full back wages merely relying on the order of approval

dated 27.04.2001 in O.P. No. 204/1993 referred above. In doing so, the

Industrial Tribunal has referred to a judgment of the Hon'ble Supreme

Court in Jaipur Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal

Verma & Ors; AIR 2002 SC 643, according to which the workman was

deemed to be in employment of the petitioner once approval for his

removal was declined by the Industrial Adjudicator.

6. Admittedly, the industrial dispute raised by the respondent

workman relating to his removal from the service of the petitioner w.e.f.

08.04.1993 which was registered as I.D. No. 349/1998 was not

adjudicated by the Industrial Tribunal on merits.

7. Mr. Ataul Haque, learned counsel appearing on behalf of the

petitioner management, has relied upon a judgment of the Division

Bench of this Court in Delhi Transport Corporation Vs. Ram Kumar

and Another (1982) II LLJ 191, to contend that the Industrial Tribunal

was totally unjustified in disposing of the reference made to it vide I.D.

No. 349/1998 merely relying on the order declining approval dated

27.04.2001 in O.P. No. 204/1993. The submission of Mr. Ataul Haque is

that it was the duty of the Industrial Adjudicator to have decided the

reference under Section 10 on merits without getting influenced by order

passed on approval application under Section 33(2)(b). In Ram Kumar's

case (supra), the Division Bench of this Court has held that grant or

refusal of permission by the Industrial Tribunal under Section 33(2)(b) is

not an adjudication and in terms of the said judgment the industrial

adjudication comes only when the matter is referred under Section 10 of

the Industrial Disputes Act 1947 to the Labour Court or the Tribunal.

8. In view of the judgment of the Division Bench of this Court, the

Tribunal below was required to adjudicate the reference on merits

notwithstanding refusal of approval for termination of the respondent

from service w.e.f. 08.04.1993. This Court feels itself bound by the

judgment of the Division Bench of this Court in Ram Kumar's case

(supra), according to which the reference was required to be decided by

the Industrial Adjudicator on merits though approval for removal from

service was declined.

9. Under the circumstances, the impugned award which is not a

judgment on merits, cannot stand the test of judicial scrutiny and the

said award is, therefore, set aside. The case is remanded back to the

Tribunal below/successor Court for fresh adjudication after giving an

opportunity of hearing to both the parties. The parties are directed to

appear before the Tribunal below/successor Court for directions at 2:00

P.M. on 28.08.2009. The Court below should make an endeavour to

decide the reference afresh as expeditiously as possible, preferably

within 6 months from today and the counsel appearing on behalf of both

the parties have assured that they will not seek any adjournment on

dates, as may be fixed by the Tribunal for hearing of the case.

10. In view of the above, this writ petition is allowed and stands

disposed of with no order as to costs. Stay application also stands

disposed of accordingly.

AUGUST 19, 2009                                      S.N.AGGARWAL, J
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