Delhi High Court
Shri Jeet Singh vs Delhi Transport Corporation on 10 September, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 4826/2001
% Date of Decision: 10th September, 2009
# SHRI JEET SINGH
..... PETITIONER
! Through: Mr. Rakesh Kumar, Advocate.
VERSUS
$ DELHI TRANSPORT CORPORATION
.....RESPONDENT
^ Through: Mr. J.S. Bhasin, Advocate.
CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL
1. Whether reporters of Local paper may be allowed to see
the judgment? YES
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported in the
Digest? YES
S.N.AGGARWAL, J (ORAL)
The petitioner has filed this writ petition under Article 226 of the
Constitution against Delhi Transport Corporation seeking the following
prayers:
"A) reinstate the petitioner in service with full back wages and
continuity of service from 06.07.1992; with consequential
benefits.
B) pay the entire dues/arrears as accrued to him since
06.07.1992 onwards till date as applicable according to law.
C) Cost of the writ may also be awarded to the petitioner.
D) Any other order as deemed fit and proper in the
circumstances of case be also passed in favour of petitioner and
against the respondent."
2. Briefly stated the facts of the case relevant for addressing the
above prayers made by the petitioner in this writ petition are as follows.
The petitioner was working as a Driver in Delhi Transport
Corporation (respondent herein). He was served with a charge-sheet
dated 06.03.1991 for remaining absent unauthorizedly for 26 days in
December 1990, 22 days in January 1991 and 27 days in February 1991.
After holding a domestic inquiry against him , the respondent decided to
remove him from service w.e.f. 06.07.1992. Since at that time an
industrial dispute concerning Delhi Transport Corporation workers'
demand for implementation of Fourth Pay Commission Report was
pending adjudication before the Industrial Tribunal, an application for
approval under Section 33(2)(b) being O.P. No. 263/1992 was filed by the
respondent before the Tribunal before whom the earlier industrial dispute
was pending. This approval application filed by the respondent
management was rejected by the Tribunal vide order dated 16.10.2000.
The respondent being aggrieved by the said order of rejection filed a writ
petition being W.P.(C.) No. 4161/2001 in this Court. The writ petition
being W.P.(C.) No. 4161/2001 seeking to challenge the rejection of
approval application under Section 33(2)(b) has been dismissed on merits
vide order dated 10.09.2009. The consequence of dismissal of
respondent's writ petition being W.P.(C.) No. 4161/2001 is that the order
of rejection passed by the Tribunal rejecting the approval under Section
33(2)(b), has attained finality.
3 The Constitution Bench of the Hon'ble Supreme Court in Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd. Vs. Shri Ram Gopal Sharma and
Others, AIR 2002 SCC 643, has held as under:
"If the authority refuses to grant approval obviously it follows
that the employee 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 available.
This being the position there is no need of a separate or
specific order for his reinstatement."
4. It is evident from the above judgment of the Constitution Bench of
the Hon'ble Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank
Ltd.'s case (supra) that if approval under Section 33(2)(b) is not granted
by the Tribunal, then order of dismissal of discharge is deemed to have
never been passed and consequence of it is that the employee is deemed
to have continued in service entitling him to all the benefits that are
available to him.
5. In M.D., Tamil Nadu State Transport Corporation Vs.
Neethivilangan, Kumbakonam, 2001 IV AD (S.C.) 485, it was held by the
Hon'ble Hon'ble Supreme Court as under:
"By passing the order of discharge or dismissal de facto
relationship of employer and employee may be ended but not
the de jure relationship for that could happen only when the
Tribunal accords its approval. The relationship of employer and
employee is not legally terminated till approval of discharge
or dismissal is given by the Tribunal. In a case where the
Tribunal refuses to accord approval to the action taken by the
employer and rejects the petition filed under section (2)(b) of
the Act on merit the employer is bound to treat the employee
as continuing in service and give him all the consequential
benefits. If the employer refuses to grant the benefits to the
employer the latter is entitled to have his right enforced by
filing a petition under Article 226 of the Constitution. There is
no rational basis for holding that even after the order of
dismissal or discharge has been rendered invalid on the
Tribunals rejection of the prayer for approval the workman
should suffer the consequences of such invalid order of
dismissal or discharge till the matter is decided by the
Tribunal again in an industrial dispute. Accepting this
contention would render the bar contained in section 33(1)
irrelevant. In the present case as noted earlier the Tribunal on
consideration of the matter held that the employer had failed to
establish a prima facie case for dismissal/discharge of the
workman, and therefore, dismissed the application filed by
the employer on merit. The inevitable consequence of this
would be that the employer was duty bound to treat the
employee as continuing in service and pay him his wages for
the period, even though he may be subsequently placed under
suspension and an enquiry initiated against him."
6. In view of the judgment of the Hon'ble Supreme Court in M.D.,
Tamil Nadu State Transport Corporation's case, the petitioner is entitled
to have all the reliefs treating him as continuing in service of Delhi
Transport Corporation till the age of his superannuation.
7. The counsel for both the parties in the course of hearing have
submitted that the petitioner has already reached the age of
superannuation during the pendency of the proceedings in the present
writ petition sometime in 2007. Since the petitioner has already reached
the age of superannuation, the question of his reinstatement in service is
out of place. What he is entitled is for wages for the period intervening
between the date of removal and the date of superannuation besides all
other terminal benefits given to an employee on superannuating from
service in normal course.
8. In view of what has been stated above, this writ petition is allowed
and the respondent is hereby directed to pay the entire dues/arrears
accrued to the petitioner for the period intervening between the date of
his removal and the date on which he had reached the age of
superannuation. The respondent is stated to has made some payment to
the petitioner during the pendency of the present writ petition. Needless
to say that the respondent is entitled to adjustment of payment, if any,
made by it to the petitioner during the pendency of the present writ
petition while computing the arrears payable to him in terms of this
order. The petitioner is entitled to all other consequential benefits
treating him in service till the date of superannuation. The arrears be
paid to the petitioner by the respondent within a period of eight weeks
from today.
This writ petition stands disposed of in terms referred above.
September 10, 2009, bsr S.N.AGGARWAL, J
