Delhi Transport Corporation vs Sh. Ramesh Chander
2009 Latest Caselaw 66 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) NO.11803/2005

%                      Date of Decision: 13.01.2009

DELHI TRANSPORT CORPORATION                             .... Petitioner

                       Through Mr.Mohammad Sajid, Advocate

                                 Versus

SH. RAMESH CHANDER                                      .... Respondent

                       Through Ms.Rekha Palli, Advocate

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

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


V.K.SHALI, J. (Oral)

*

1. This is a writ petition filed by the petitioner challenging the award

dated 8th March, 2004 passed by Sh.C.K.Chaturvedi, Presiding Officer,

Labour Court No.VII, Delhi in ID No.150/1996 titled as The Workman

Sh. Ramesh Chander Vs. The Management of M/s Delhi Transport

Corporation

2. Briefly stated the facts leading to the filing of the present writ

petition are that the Workman Sh.Ramesh Chander raised an Industrial

dispute against his alleged illegal removal from services of the

petitioner/DTC herein. The said dispute came to be referred for

adjudication by the Secretary (Labour) Government of NCT of Delhi in

the following terms of reference:-

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

3. The workman filed a statement of claim that he was employed by

the Delhi Transport Corporation as a Conductor. It was alleged by the

workman that a charge sheet was issued to him on 19.9.1986 alleging

therein that he had not issued the tickets to the passengers though he

had collected the fare from them. The respondent/workman had

alleged that along with the charge sheet neither the copy of documents

nor the list of witnesses or the preliminary enquiry report was given to

him. Accordingly, the report of the enquiry officer was assailed as being

violative of the principles of natural justice as well as on merits being

perverse. The workman had alleged that he is unemployed and

therefore, claimed reinstatement with full back wages and continuity of

service.

4. The petitioner/Management filed its written statement and

refuted the allegations made by the respondent/workman without

refuting the stand of the respondent/workman. It was averred that the

respondent/workman was performing the duties on Bus No.DEP 8563

on Delhi Bela route road and on checking it was found that he was

involved in malpractice of collecting fare, yet not issuing the tickets and

thereby causing loss of revenue to the Delhi Transport Corporation. On

the pleadings of the parties, the following two issues were framed :

"(i) Whether a fair and proper enquiry was not conducted in accordance with principles of natural justice ?

(ii) As per terms of reference."

5. The workman did not adduce any evidence in support of his

statement of claim but on the contrary took the plea that the

Management of DTC had under Section 33 (2)(b) of the Industrial

Disputes Act, 1947 approached the Court for the purpose of approval of

the Secretary (Labour) so far as the dismissal of the

respondent/workman was concerned.

6. The relevant provisions of Section 33 of the Industrial Disputes

Act, 1947 are reproduced below :

33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceedings before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,-

(a) .......................................................................................

(b) .......................................................................................

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman]-

(a) ................................................................................

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman........."

7. The approval was rejected by the Secretary (Labour), Government

of NCT of Delhi. Even the petition under Section 33 (2)(b) of the

Industrial Disputes Act was dismissed by Sh.P.S.Teji, the learned

Presiding Officer, Industrial Tribunal No.II vide its order dated

28.7.2003.

8. This order of dismissal of the petition under Section 33(2)(b) was

not challenged by the petitioner/Management before the High Court

and therefore, this order had attained finality so far as the parties are

concerned. In the light of the dismissal of such petition under Section

33 (2)(b) of the Industrial Disputes Act, 1947 it was urged by the

respondent/workman that he was entitled to be reinstated with full

back wages. The respondent/workman had also placed reliance in this

regard in a case titled as Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.

Vs. Ram Gopal Verma & Ors. AIR 2002 SC 643.

9. The learned Labour Court had also placed reliance on the said

judgment and come to a conclusion that as the petitioner who was the

respondent before the Labour Court had not challenged the dismissal of

its petition under Section 33 (2)(b) of the Industrial Disputes Act before

the High Court therefore, the said non-grant of approval by the

Secretary (Labour) and the dismissal of the petition by the Labour Court

was final and binding between the parties. The said finding is res

judicata so far as the lis between the DTC and respondent/workman

was considered. Giving this reasoning, the learned Presiding Officer of

the Labour Court has held his removal to be illegal and directed the

Management to reinstate the respondent/workman with continuity of

service and with full back wages and consequential benefits.

10. I have heard the learned counsel for the parties and perused the

record. The legal position is very clear as is laid down by the

Constitutional Bench of the Hon'ble Supreme Court in Jaipur Zila

Sahakari Bhoomi Vikas Bank Ltd. case (supra), wherein it has been

held that non-approval of the order of dismissal or failure to make an

application under Section 33 (2)(b) of the Industrial Disputes Act

seeking approval renders dismissal of a workman inoperative and

consequently, the workman becomes entitled to reinstatement and back

wages from the date of his dismissal. It has also been held by the

learned Single Judge of our own High Court in case a titled as Delhi

Transport Corporation Vs. Surinder Pal 2007 (142) DLT 595 that in a

case of industrial dispute, if a Tribunal has given a finding after

recording evidence that inquiry was fair and just and the Tribunal gives

approval on the said application under Section 33(2)(b) and this finding

is not challenged, it becomes final and it shall operate as res judicata

between the parties. The Court observed that though the provisions of

Section 11 of CPC are not applicable but the broad principles of res

judicata are applicable.

11. Thus a perusal of the aforesaid two authorities leaves no manner

of doubt that in case an application under Section 33 (2)(b) of the

Industrial Disputes Act filed by the Management is approved or

disapproved by the Tribunal then such a finding attains finality between

the parties and unless and until the said finding is set aside by the

High Court in exercise of its powers of judicial review. In subsequent

proceedings between the parties pertaining to the same issue of

dismissal of the employee would be barred by doctrine of res judicata.

In other words, meaning thereby that if such an approval is not granted

to the Management under Section 33 (2)(b) of the Industrial Disputes

Act by his petition by Labour Court automatically the dismissal of the

respondent/workman becomes bad in law and he is entitled to

reinstatement with full back wages. In the instant case, the learned

counsel for DTC/ the petitioner herein was not able to refute this

proposition of law. He has also not been able to cite any authority to

the contrary in this regard though he was reluctant to concede the

same. Coming back to the facts of the present case so far as the

workman in the instant case is concerned, he was subjected to a

domestic enquiry and consequent to dismissal by the Management of

the DTC on the alleged ground of having committed mis-conduct

inasmuch as it was alleged against him that he had in the official

discharge of his duties collected money as a conductor though he has

not issued the tickets. In the enquiry proceedings, he was found guilty

and the punishment of dismissal was imposed on him. However,

dismissal did not become effective unless and until permission was

granted by the Labour Court. The said permission was not granted by

the Labour Court consequently the Management filed a petition under

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

permission of the Labour Court which permission was refused by

Sh.P.S.Teji, Presiding Officer, Industrial Tribunal No.II. This dismissal

of the petition by Sh.P.S.Teji, Presiding Officer, vide its award dated 8th

March, 2004 has not been assailed by the DTC, the petitioner herein

before the High Court. Therefore, that no grant of approval by the

Secretary (Labour) of the dismissal of the petition and the consequent

reinstatement of the petitioner becomes final between the Management

of DTC of the workman. In such a contingency to assail the present

award which is purely based on the earlier dismissal of their petition

under Section 33 (2)(b) of the Industrial Disputes Act, is not

maintainable. Therefore, I do not find any infirmity either in the

award, which has been passed by Sh.C.K.Chaturvedei, Presiding

Officer, Labour Court No.VII, Delhi in ID No.150/1996. Accordingly,

the writ petition of the petition is dismissed. No order as to costs

January 13th , 2009 V.K.SHALI, J.

RN/RS