Delhi High Court
Sh.Aman Singh vs The Management Of Delhi Transport ... on 24 March, 2009
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) NO. 7614/2005
% Date of Decision : 24.03.2009
SH.AMAN SINGH .... Petitioner
Through Ms. Rekha Palli, Advocate
Versus
THE MANAGEMENT OF DELHI TRANSPORT .... Respondent
CORPORATION
Through Mr. G.S. Chaturvedi, Advocate
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether reporters of Local papers may be NO
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in
the Digest? NO
V. K. SHALI, J.(Oral)
*
1. Rule.
2. With the consent of the parties the writ is taken up for disposal.
The petitioner/workman was a Conductor with the respondent/DTC.
3. I have heard the learned counsel for the parties and perused the
record.
4. The point in controversy between the parties is very short one.
The question which arise for consideration is that in case an employee
is proceeded against departmentally by the management and he is
WP(C) No.7614/2005 Page 1 of 5
found to have mis-conducted himself resulting in imposition of
punishment of removal or dismissal from service but the management
does not obtain the requisite approval of the competent authority under
Section 33(2)(b) of the Industrial Disputes Act, 1947 whether such
punishment can be deemed to be valid punishment and if not then
what are the necessary consequence.
5. This issue has been set at rest by the Apex Court in Jaipur Zila
Sahakari Boomi Bank Ltd. Vikas Vs. Shri Ram Gopal Sharma &
Ors. JT 2002 (1) SC 182, wherein it has been observed as under:
"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 employees
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 order the said
provision. In other words, his 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
WP(C) No.7614/2005 Page 2 of 5
available to him. 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."
6. In the light of the aforesaid authoritative pronouncement the legal
position is very clear that in case a disciplinary proceedings initiated
against a delinquent employee and culminating into imposition of
punishment, if he is falling within the definition of Section 2(s) of the
Industrial Disputes Act, 1947, the said punishment will not be valid
and enforceable unless and until permission of the competent authority
under Section 33(2)(b) of the Industrial Disputes Act, 1947 is obtained,
provided any other industrial dispute is pending. Similar proposition
has been laid down by the Full Bench Judgment of this Court in Delhi
WP(C) No.7614/2005 Page 3 of 5
Transport Corporation Vs. Jagdish Chander 2005 V AD (Delhi) 217
wherein it has been observed:
"Now, it cannot be stated that the workman is remedy-
less in a situation where application of the employer
under Section 33(2) (b) of the Act has been rejected. He
could invoke provisions of Section 33 C (2) as far as the
monetary benefits are concerned and approach the High
Court for issuance of a prerogative writ jurisdiction of the
High Court under Article 226 of the Constitution of
India."
7. In the light of the aforesaid legal position, the question which
arises for consideration is where the petitioner/workman was visited
with a punishment of removal from services of the respondent/DTC,
however, the management did not obtain the requisite permission
under Section 33 (2) (b) of the Industrial Disputes Act, 1947 on the
ground that the two disputes pending before the learned Labour Court
pertaining to stoppage of increment and reduction to a lower stage in
the time scale which was subsequently decided in their favour were
pending does the punishment of removal from service is bad.
8. It was contended by Mr. G.S. Chaturvedi both these disputes
were actually private disputes between the petitioner/workman and the
respondent/DTC, and therefore, there was no necessity of obtaining the
permission under Section 33 (2) (b) of the Industrial Disputes Act, 1947.
9. I have carefully considered the submissions made by the
respective sides. There is no dispute about the legal position that if a
delinquent employee is visited with the punishment of removal or
dismissal or termination as a consequence of disciplinary proceedings
initiated against him such a punishment becomes operative only if
WP(C) No.7614/2005 Page 4 of 5
approval of the competent authority is obtained under Section 33(2)(C)
of the Industrial Disputes Act, 1947. Reliance in this regard can be
placed on the two judgment of Jaipur Zila Sahakari Boomi Bank Ltd
Vikas Vs. Shri Ram Gopal Sharma & Ors JT 2002 (1) SC 182 and
Delhi Transport Corporation Vs. Jagdish Chander 2005 V AD (Delhi)
217.
10. The respondent/management not having obtained the requisite
approval under Section 33(2)(b) of the Industrial Disputes Act, 1947,
the necessary consequence of the same are that the
petitioner/workman is deemed to be reinstated in the service of the
respondent/DTC. That being the position the order dated 14th
September, 2004 removing the petitioner from the service of the
respondent/DTC is accordingly set aside and petitioner is deemed to be
in service of the respondent/DTC with all benefits of continuity of
service except the payment of back wages. So far as the question of
back wages is concerned, the benefit of the same is not given to the
petitioner/workman on account of the fact that the petitioner/workman
has not worked as a Conductor, and therefore, the petitioner is granted
20% of the total back wages from 14th September, 2004 till the actual
resumption of his duties.
No order as to costs.
MARCH 24, 2009 V.K. SHALI, J.
KP
