Smt. Harjeet Kaur vs Dtc
2009 Latest Caselaw 1952 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                     #11
+      LPA 29/2009

       SMT. HARJEET KAUR                           ..... Appellant
                      Through Ms. Kittu Bajaj, Advocate.

                  versus

       DTC                                           ..... Respondent
                        Through Mr. J.N. Aggarwal, Advocate.

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL


                              ORDER

% 11.05.2009

The appellant is widow of late Sh. Jogender Singh who was

employed as a Driver with Delhi Transport Corporation (DTC). He

expired on 04.07.1994 and before his death, he was removed from

service of the DTC vide order dated 21.10.1993 after holding a

departmental enquiry. At the time of removal of the husband of the

appellant certain labour disputes regarding general demands made by

the Union were pending before the Labour Court and the management

of the DTC filed an application on 21.10.1993 itself under Section

33(2)(b) of the Industrial Disputes Act, 1947 before the concerned

Industrial Tribunal for approval of its action to remove the husband of

the appellant from service. The approval application was dismissed as

having abated, vide order dated 09.03.1995. The appellant applied

for arrears of salary as well as terminal benefits of her deceased

husband vide legal notice dated 4.6.1999, besides several oral

requests. The respondent by letter dated 15.10.1999 informed her

that dues will be released to her only upon deposit of an amount of

Rs.65,810/- by her. The respondent declined to release the terminal

dues to the appellant on the ground that it was a case of termination

and therefore the appellant was not entitled to any arrears of salary or

to pensionary benefits. The appellant approached this Court by filing a

writ petition being W.P.(C) No. 7865/2002 seeking a direction to the

respondent to set aside the impugned order of removal and to pay the

wages and also for a direction to sanction family pension to her w.e.f.

4.7.1994 payable under the CCS (Pension) Rules as her husband was a

pension optee. This petition was dismissed by the learned single Judge

vide order dated 8.9.2004 on the ground of delay as the appellant was

seeking quashing of order of termination after 9 years. The

respondent, though appeared pursuant to the notice, did not apprise

the Court that no order of termination existed on that day on account

of dismissal of approval application under Section 33(2)(b).

Respondent also failed to inform that the application for approval was

dismissed as having abated. It appears that subsequently appellant

came to know about the rejection of the approval application and she

filed application for review of the judgment dated 8.9.2004. This

application came to be rejected on the ground that no ground for

review was made out. Being aggrieved, the appellant filed LPA No.

1875/2005 wherein the Division Bench permitted the appellant to

withdraw the appeal with liberty to file appropriate proceeding.

Thereafter, the appellant has filed the present petition for releasing

arrears of salary of her deceased husband from 21.10.1993 till the

date of his death i.e. on 4.7.1994 and also for other pensionary

benefits with interest by treating the deceased husband of the

appellant as an employee, who expired during service. The learned

single Judge dismissed the writ petition by order under appeal. It was

held that the legal heirs of deceased workman who were aware about

the impugned removal did not move the Industrial Tribunal for their

substitution in approval proceedings. Secondly, it was held that the

application was barred by principles of res-judicata.

2. Ms. Kitu Bajaj, learned counsel appearing for the appellant,

strenuously contended that since the approval application of the

respondent was dismissed by the Industrial Tribunal as abated the

impugned order of removal had no legal consequence. Thus, the

widow is entitled to all arrears of his salary till his death and family

pension under the CCS (Pension) Rules. She relied upon the judgment

of Supreme Court in Jaipur Zila Sahakari Bhoomi Bank ltd. Vs. Sh.

Ram Gopal Sharma & Ors, JT 2002 (1) SC 182 and particularly laid

emphasis on paras 14 & 15 of the judgment, which are extracted

below :

"14. Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pend- ing 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 of unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority re- fuses to grant approval obviously it follows that the em- ployee 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 avail- able. 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 em- ployee 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 intend- ed 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 refer- ence and thereafter adjudication. In this view, it is not cor- rect to say that even though where the order of discharge or dismissal is inoperative for contravention of the manda- tory conditions contained in the proviso or where the ap- proval is refused, a workman should still make a complaint under Section 33A and that the order of dismissal or dis- charge 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 dis- missal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be meaning-

less 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 ap- proval granted.

15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such ap- plication on merit and as such the order of dismissal or dis- charge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be hap- pier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b), proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifical- ly and expressly given to an employee under the said pro- viso as against possible victimization, unfair labour prac- tice or harassment because of pendency of industrial dis- pute so that an employee can be saved from hardship of unemployment."

[Emphasis Supplied]

3. Learned counsel for the appellant submitted that the termination

is void ab initio and the deceased workman must be deemed to have

been continued in service till his death and the appellant is entitled to

the family pension. She submitted that the deceased husband was

never served in the approval proceedings and though the death of the

workman was apprised to the Tribunal by the respondent, legal heirs

were not brought on record despite specific orders of the Industrial

Tribunal and consequently the application came to be dismissed as

abated. She submitted that even when there is decline of approval not

on merits, the order of termination would become void and

inoperative. She submitted that learned single Judge was in error in

placing onus on the legal heirs of the deceased to implead themselves

in the approval application even when notice of the proceedings was

never served upon them.

4. We find considerable substance in the argument of the learned

counsel. In our opinion, the rejection of the approval application would

render the termination void ab initio and consequently the employee

would be deemed to be in service and the appellant is entitled to the

family pension as prayed by her. The only defence that was raised on

behalf of the DTC is that the present petition is barred by res-judicata.

As stated earlier, the fact of rejection of the approval application was

suppressed from this Court when the earlier petition was dismissed on

10.10.2004. The writ petition was dismissed solely on the ground of

delay and the fact of the rejection of application for approval was not

an issue before the Court. This fact was brought to the notice of the

learned Single Judge in the review proceedings, where the review

application was dismissed without going into the merits of the

contention. The LPA filed against the order of rejection of the review

application was withdrawn and the Division Bench granted liberty to

the appellant to adopt appropriate proceedings. The learned counsel

for the appellant has contended and in our opinion rightly that when

there was no determination of the case on merits, it cannot operate as

res-judicata in a subsequent proceeding. In support of her contention,

she relied upon the decisions of the Supreme Court in Sheodhan

Singh Vs. Daryo Kunwar, AIR 1966 SC 1332, Inacio Martins Vs.

Narayan Hari Naik, (1993) 3 SCC 123 and State of Maharashtra

Vs. M/s National Construction Com. Bombay, AIR 1996 SC 2367.

In Sheodhan Singh Vs. Daryo Kunwar (supra), while considering

the meaning of the words "heard and finally decided", used in Section

11 of the Code, the Court observed:

"Where, for example, the former suit was dismissed

by the trial Court for want of jurisdiction ........... or on the ground of non-joinder of parties ..... and the dismissal is confirmed in appeal (if any), the decision not being on merits, would not be res judicata in a subsequent suit".

5. This view was followed in Inacio Martins Vs. Narayan Hari

Naik (supra). This issue was again considered in the case of State of

Maharashtra Vs. M/s National Construction Com. Bombay

(supra) where it was held that the bar under Section 11 of CPC applies

only if the matter directly and substantially in issue in the former suit

has been heard and finally decided by a Court competent to try such

suit. This clearly means that on a matter or issue in question, there

has to be an application of the judicial mind and a final adjudication

made. If the former suit is dismissed without any adjudication on the

matter in issue or merely on a technical ground of non-joinder, that

cannot operate as res-judicata. The contention of the DTC counsel that

the petition is barred by res-judicata is therefore liable to be rejected.

6. It has been consistently held by several judgments of the

Supreme Court that pension is neither a bounty nor a matter of grace

depending upon the sweet will of the employer and that it creates a

vested right. The pension is not an ex-gratia payment but it is a

payment for the past service rendered and it is a social welfare

measure rendering socio-economic justice to those who in the hey-day

of their life ceaselessly toiled for the employer on an assurance that in

their old age they would not be left in lurch. The right of family

pension cannot be deprived on mere technicalities as the employer has

failed to obtain the approval under Section 33(2)(b) of the Industrial

Disputes Act. The termination of the deceased employee was clearly

void ab initio and he must be deemed to have been continued in

service till his death on 4.7.1994. Learned counsel appearing for the

appellant states that she has no objection if arrears of salary of the

deceased workman from the date of his termination till the date of his

death is adjusted towards the outstanding loan amount. We hasten to

add that no such amount is liable to be adjusted against the family

pension. The respondent is directed to release the family pension

including the arrears of family pension in favour of the appellant within

six weeks from today along with interest @ 12% per annum. Appeal is

disposed of accordingly.

CHIEF JUSTICE

NEERAJ KISHAN KAUL, J MAY 11, 2009 dk