Delhi Transport Corporation vs Chander Kumar
2009 Latest Caselaw 443 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) NO. 17221/2006

%                               Dated: 09.02.2009

DELHI TRANSPORT CORPORATION                                .... Petitioner

                         Through Mr. Anand Nandan, Advocate

                                      Versus

CHANDER KUMAR                                              .... Respondent

                         Through None.


HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether reporters of Local papers may be
       allowed to see the judgment?             NO
2.     To be referred to the reporter or not?  YES
3.     Whether the judgment should be reported in
       the Digest?                            YES


V. K. SHALI, J. (Oral)

*

1. The petitioner/DTC by virtue of the present writ petition has

challenged the judgment/order dated 16th December, 2002 passed by

Mr. P.S. Teji, learned Presiding Officer, Labour Court-II, Karkardooma

Courts, Delhi in ID No. 590/1993 in the case titled Delhi Transport

Corporation Vs. Chander Kumar. By virtue of the aforesaid

impugned order the Labour Court has rejected/dismissed the

application of the petitioner/management for grant of approval under

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

2. That briefly stated the facts leading to the filing of the present

case are that the respondent/workman is alleged to have

unauthorizedly absented from duty from 08.05.1993 to 17.05.1993

despite the fact that he was asked to attend the duty or report to the

medical board of the DTC. On account of this, disciplinary proceedings

were initiated against the respondent/workman and by virtue of the

standing orders of the DTC, the respondent/workman was removed

from service and full one month's wages were remitted to him by way of

money order. The money order was not received back by the

petitioner/management. The petitioner/management filed an

application for grant of approval with the learned Labour Court under

Section 33(2)(b) of the Industrial Disputes Act, 1947 seeking permission

to dispense with the services of the respondent/workman.

3. The respondent/workman in his reply denied the allegations

made against the him. The following preliminary issue regarding the

validity of the enquiry was framed on 10th February, 1995.

"Whether the applicant held a legal and valid enquiry against the respondent according to the principles of natural justice?"

4. On 31st July, 2002 the validity of enquiry was upheld and the

enquiry was decided against the respondent/workman. Issues framed

on the pleadings of the parties were as under:-

(i) Whether the respondent has committed misconduct?

(ii) Whether in compliance of Section 33(2)(B) of the Industrial Disputes Act, 1947 one month salary remitted to respondent?

(iii) Relief.

5. So far as the issue no. 2 regarding compliance of Section 33(2)(b)

of the Industrial Disputes Act, 1947 of having sent one month salary to

the respondent/workman is concerned, this was decided against the

respondent/workman. As regards issue no.1, the learned Tribunal was

of the opinion that availing of leave without pay does not amount to

misconduct as per the standing orders of the DTC. Since the issue no.

1 itself was decided against the petitioner/management the other two

issues became in-consequential and accordingly learned Industrial

Tribunal refused to grant of approval to the petitioner/management and

dismissed their application on 16th December, 2002.

6. The petitioner/management feeling aggrieved by the aforesaid

rejection of the approval under Section 33(2)(b) of the Industrial

Disputes Act, 1947 has preferred the present writ petition. The main

challenge to the writ petition is that the learned Tribunal has grossly

erred in not referring to the earlier adjudication by the learned Labour

Court in ID No. 144/1995 in the case titled The Workman Sh.

Chander Kumar Vs. The Management of M/s Delhi Transport

Corporation wherein the reference was made by the Secretary (Labour),

Government of NCT of Delhi about the industrial dispute which read as

under:

"Whether the removal of Sh. Chander Kumar from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

7. On the basis of the aforesaid reference which was made by the

learned Labour Court-VII an issue was framed whether the domestic

enquiry was not conducted according to the principle of natural justice

and whether it was not fair or valid.

8. Despite the fact that several opportunities were given to the

respondent/workman to adduce the evidence in support of his case in

order to prove this issue, no one appeared on behalf of the

respondent/workman before the Ld. Labour Court, as a consequence of

which it was held by the Learned labour Court that the

respondent/workman has not adduced any evidence to prove the fact

that his services were illegally terminated by the

petitioner/management. Accordingly, award was passed on 16th

December, 2002.

9. I have heard the learned counsel for the petitioner but did not

have the advantage of hearing the respondent/workman. The order

sheet shows that despite the fact that the respondent/workman was

served but he had not appeared and accordingly, vide order dated 4th

September, 2008 he was proceeded ex-parte.

10. I have perused the record. The respondent/workman having

chosen to get a reference made to the Labour Court-VII with regard to

the alleged illegal and unjustified termination of his own, and yet he

had not appeared before the learned Labour Court to prove his

termination was illegal and unjustified. The learned Labour Court had

accordingly, rightly dismissed the claim of the respondent/workman.

In this very matter only an issue with regard to the fairness of the

enquiry was framed in respect of which also the respondent/workman

did not adduce any evidence. This ID was decided first and thereby

upheld the legality and validity of not only the enquiry but also the

termination of the respondent/workman. The petitioner/management

ought not to have pursued their petition under Section 33(2)(b) of the

Industrial Disputes Act, 1947. But having chosen to continue with the

same they unnecessarily exposed themselves to a finding which is

contrary to the record. Rejection of grant of approval by the learned

Industrial Tribunal vide order dated 16th December, 2002 is totally

unsustainable in the light of the fact that the respondent/workman has

not challenged the judgment/order of the learned Labour Court-VII with

regard to the legality of his termination vide order dated 16th December,

2002 is directly in conflict with the earlier findings of the

judgment/order of the learned Labour Court-VII. Therefore, there is no

option but allow the petition filed by the petitioner/management and

set aside the order dated 16th December, 2002 dismissing the petition of

the petitioner/management to grant approval under Section 33(2)(b) of

the Industrial Disputes Act, 1947. Accordingly, the said order dated

16th December, 2002 is set aside and the petitioner/management is

granted approval for the termination of service of the

respondent/workman. With these observations the writ petition is

allowed.

No order as to costs.

FEBRUARY 09, 2009                                                V.K. SHALI, J.
KP/RN