Delhi Transport Corporation vs Shri Mohan Lal (Deceased) Through ...
2010 Latest Caselaw 3013 Del

                    *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 6758/2003

%                                                 Date of decision: 1st July, 2010

DELHI TRANSPORT CORPORATION                        ..... Petitioner
                  Through: Ms. Saroj Bidawat, Advocate.

                                         Versus

SHRI MOHAN LAL (DECEASED)
THROUGH LEGAL HEIRS & ANR.                     ..... Respondents
                  Through:   Mr. Varun Prasad for Mr. Harish
                            Sharma, Advocate.
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 DTC by this writ petition impugns the dismissal by the

Industrial Tribunal of its application under Section 33 (2)(b) of the ID Act seeking

approval of its action/order dated 6th July, 1993 of dismissal of the deceased

workman Shri Mohan Lal whose legal heirs are now the respondent no.1. The

workman Shri Mohan Lal died on 24th December, 1998 during the pendency of the

application under Section 33(2)(b) before the Industrial Tribunal and his legal

heirs were substituted in his place. The Industrial Tribunal vide order dated 7th

August, 2002 on the preliminary issue framed as to the validity of the domestic

inquiry preceding the order of termination of service, held the domestic inquiry to

be vitiated for the reason of the petitioner DTC, though having placed the record

of the domestic inquiry before the Industrial Tribunal but in proof of the same

having examined only the clerk/typist of the Inquiry Officer and not the Inquiry

Officer himself. The petitioner DTC sought an opportunity to prove the

misconduct alleged against the workman before the Industrial Tribunal. However,

the Industrial Tribunal vide order dated 3rd March, 2003 dismissed the application

for the reason of, the workman having been charged with, while working as

Conductor with the petitioner DTC, reselling of tickets and found short of cash

during a check carried out by the checking team of the petitioner DTC and further

with having refused to sign the challan and causing hindrance in the work of the

checking officials, the petitioner DTC having not examined any of the passenger

witnesses who are/were alleged to have complained against the workman.

2. Aggrieved from the aforesaid dismissal of its application under Section

33(2)(b), the present writ petition was filed. This Court vide ex parte order dated

22nd October, 2003, while issuing notice of the petition stayed the operation of the

aforesaid orders.

3. The application under Section 33(2)(b) was necessitated not because of any

earlier dispute between the petitioner DTC and the workman aforesaid but owing

to the then pendency of a general dispute between the petitioner DTC and its

employees/workmen.

4. The counsel for the petitioner DTC has contended that the order dismissing

the application under Section 33(2)(b) merely for the reason of non-examination

of the passenger witnesses is bad in view of the judgment in State of Haryana Vs.

Rattan Singh AIR 1977 SC 1512 and DTC Vs. N.L. Kakkar 110 (2004) DLT 493

laying down that production of passengers either in a domestic inquiry or before

an Industrial Adjudicator is not at all necessary and is highly impractical.

5. I have in judgment, also being pronounced today in DTC Vs. Shyam Lal

W.P.(C) No.3633/2004 dealt in detail with respect to the scope of inquiry in a

proceedings under Section 33(2)(b) of the ID Act, particularly the difference with

the scope of inquiry in adjudication of a industrial dispute under Section 10 of the

ID Act. It has been held in the said judgment that the inquiry/examination of the

domestic inquiry as well as the misconduct alleged, in a proceeding under Section

33(2)(b) is confined/limited only to whether it is by way of victimization; if it is

not by way of victimization, any aberration even if therein would still not entitle

the Industrial Adjudicator to refuse the approval sought under Section 33(2)(b). It

has also been held in that judgment that in the absence of even a plea on behalf of

the workman that his termination is by way of victimization owing to the pending

dispute, no further inquiry whatsoever may be needed by the Industrial

Adjudicator on an application under Section 33(2)(b) of the ID Act.

6. I have in the record of the Industrial Tribunal requisitioned in this Court,

perused the reply of the deceased workman to the application under Section

33(2)(b). I do not find any plea/averment therein of the order of his termination or

the inquiry preceding the same being vitiated for the reason of victimization or for

the reason of putting him to any prejudice in the pending industrial dispute, which

as aforesaid was not with the deceased workman individually but with all the

workmen/employees of the petitioner DTC. For this reason alone, the order of the

Industrial Tribunal in the present case dismissing the application of the petitioner

DTC under Section 33(2)(b) becomes liable to be set aside/quashed, as done in the

judgment in Shyam Lal (supra).

7. In the present case, as noticed above, the workman died during the

pendency of the Section 33(2)(b) proceedings before the Industrial Tribunal. He

was otherwise employed with the petitioner DTC since the year 1965. His demise

was after approximately five years of the order of his dismissal. I have in the

judgment in Shyam Lal, while granting approval under Section 33(2)(b),

permitted the workman in that case to raise an industrial dispute qua his

termination. However in the present case, though the legal heirs of the deceased

workman would also be entitled to similarly raise the industrial dispute but

considering the nature of the controversy, and the long time which has elapsed

since then, would not be entitled to lead any evidence, which the deceased

workman himself only could have led. In view of the this peculiar feature and in

exercise of powers under Article 226 of the Constitution, it is not deemed

expedient to pass the same order in the present case as in Shyam Lal in as much as

the same would be to the detriment of the legal heirs of the deceased workman.

8. For this reason only, in view of the aforesaid peculiar development, the

present writ petition is dismissed. Costs having already been paid, no order as to

costs.

RAJIV SAHAI ENDLAW (JUDGE) 1st July, 2010 pp