M/S Complete Dewatering Systems ... vs Govt. Of Nct Of Delhi & Anr.
2010 Latest Caselaw 2124 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                WP(C)15225/2004

%                                               Date of decision: 22nd April, 2010

M/S COMPLETE DEWATERING SYSTEMS                       ....Petitioner
PVT. LTD.
                 Through: Mr. Aditya Madan, Advocate.

                                       Versus

GOVT. OF NCT OF DELHI & ANR.                                   ..... Respondents
                   Through: None.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may
       be allowed to see the judgment?                        No

2.     To be referred to the reporter or not?                 No

3.     Whether the judgment should be reported                No
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner employer, by this writ petition impugns the order dated

20th May, 2004 of the Industrial Tribunal rejecting the application of the

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

seeking approval of its order dated 13th February, 2003 of discharging the

respondent no.2 workman from employment. The Industrial Tribunal held

that the petitioner employer had conducted a valid and proper inquiry before

discharging the respondent no.2 workman from employment. Though upon

returning such finding, the application under Section 33(2)(b) ought to have

been allowed but the Industrial Tribunal still held the petitioner employer to

be not entitled to the relief for the reason that the application under Section

33(2)(b) had been filed by the petitioner employer after about 9 months of

the date of the order of discharge of the respondent no.2 workman from

employment. The Industrial Tribunal held that though there is no limitation

prescribed for filing the application under section 33(2)(b) of the Act but

since a discharge order is void ab initio and non est unless and until the

approval sought for is applied and granted, non applying for the approval for

a long time will mean that the discharge order will not come into force.

Though the Industrial Tribunal found that the petitioner employer had

applied for condonation of delay but held that the delay cannot be condoned.

The application under Section 33(2)(b) was thus not found to be a part of the

transaction of passing of order dated 13th February, 2003 of discharge of the

respondent no.2 workman and was accordingly dismissed.

2. Aggrieved therefrom the present petition was filed. Notice thereof

was issued on 11th October, 2004. The respondent no.2 workman appeared

in person before this court on 6th December, 2004 and sought time. The

respondent no.2 workman on 12th May, 2005 stated that he was not in a

position to engage a counsel. This court appointed an amicus curiae to

assist the court and to represent the respondent no.2 workman. The

petitioner was also directed to pay litigation expenses to the respondent no.2

workman. However, inspite of payment of litigation expenses and repeated

opportunities, no counter affidavit was filed by the respondent no.2

workman and the right to file the counter affidavit was closed on 27 th

September, 2006. The amicus curiae appointed by the court also stopped

appearing. Court notice was issued to the amicus curiae. The amicus curiae

appeared on 17th July, 2007 and informed that the respondent no.2 workman

was not in touch with him. The matter was still adjourned. However, none

has been appearing for the respondent no.2 workman thereafter. In the

circumstances, the respondent no.2 workman is proceeded against ex parte.

The counsel for the petitioner has been heard.

3. I may notice that the respondent no.2 workman though had initially

filed a reply to the application under Section 33(2)(b) before the Industrial

Tribunal but was proceeded ex parte before the Tribunal also. The order of

the Tribunal impugned in this petition is also an ex parte order.

4. The counsel for the petitioner has drawn attention to the order of the

Tribunal where it has been observed that because of the delay of the

petitioner in applying under Section 33(2)(b) it ought to have paid wages to

the respondent no.2 workman from the date of passing of the discharge order

and till the date of applying for the approval. The counsel contends that

inspite of holding so, the Tribunal instead of granting the approval subject to

payment of the said wages to the respondent no.2 workman, erred in

dismissing the application. Reliance is also placed on Strawboard

Manufacturing Company Vs. Gobind 1962 I LLJ 420. The Supreme Court

in the said judgment held that the application under Section 33(2) (b)

seeking approval of an action by dismissing or discharging an employee

should be made simultaneously with the offer to pay wages to the employee.

It was however clarified that the same did not mean that the filing of the

application should be on the same date as the date of the payment of wages

but the employer's conduct should be such, so as to make the filing of the

application a part of the same transaction i.e., of dismissal/discharge of the

employee and the payment of wages. It was further held that it depends

upon the facts of each case whether the application had been made at once

and without delay.

5. In the present case, the order of the Industrial Tribunal does not record

any event/happening between the date of the order of discharge and the date

of the filing of the application under Section 33(2)(b) which would make the

two disjoint and/or so separate the two events as to lead to the conclusion

that the petitioner employer had given up its right under the order of

discharge of the respondent no.2 workman, by not applying for the approval

thereof. It is significant that the petitioner employer had filed before the

Industrial Tribunal an application for condonation of delay in which it was

inter alia stated that the consultant/advisor of the petitioner employer had

initially advised that approval application can be filed at any time and which

led to the delay. This court is of the opinion that in the absence of any

rebuttal on the part of the respondent no.2 workman, the said explanation of

the petitioner employer ought to have been accepted and it ought to have

been held that in the circumstances there was no delay in applying for the

approval.

6. The reasoning of the Industrial Tribunal rejecting the application thus

cannot be sustained. The Industrial Tribunal has otherwise found the

petitioner employer to have conducted a valid inquiry.

7. The petition is therefore allowed. The order dated 20th May, 2004 of

the Industrial Tribunal rejecting the application of the petitioner employer

under Section 33(2)(b) is set aside. The application of the petitioner

employer under Section 33(2)(b) is allowed. The petitioner employer is

however directed to tender to the respondent no.2 workman wages from the

date of order of dismissal i.e. 13th February, 2003 till the date of the filing of

the application under Section 33(2)(b) of the Act. The respondent no.2

workman having failed to contest the petition and litigation expenses having

already been paid, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 22nd April, 2010 M