Delhi Transport Corporation vs Shri Ramesh Chander
2011 Latest Caselaw 1920 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment Reserved on :           March 15, 2011
                                Judgment Delivered on:           April 4, 2011

+      LPA No. 610 Of 2005

       Delhi Transport Corporation                    ..... Appellant
                         Through: Mr.Sarfaraj    Khan       and   Mr.S.M.
                                   Vaseem, Advocates.
                              Versus
       Shri Ramesh Chander                            ..... Respondent

Through: Mr.Mahabir Singh, Sr. Advocate with Mr. Rakesh Dahiya, Mr. Gayan Deep and Mr. Ajay Pandey, Advocates.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether reporters of the local papers 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

DIPAK MISRA, CJ

In this intra-Court appeal, the warrantableness of the order dated

14.9.2004 passed by the learned Single Judge in CW No.1998/2004 is called

in question.

2. Filtering the unnecessary details, the facts which are essential to be

stated are that the appellant, Delhi Transport Corporation (for short „the

LPA 610/2005 page 1 of 27 DTC‟), filed an application under Section 33(2)(b) of the Industrial

Disputes Act, 1947 (for brevity „the Act‟) before the Industrial Tribunal-II

in O.P. No.389/93 seeking approval of the action of removal of the

respondent - workman from service. The tribunal framed a preliminary

issue on 2.9.1996 to the effect whether a legal and valid enquiry had been

held against the workman and, by order dated 7.8.2002, decided the issue

against the DTC. Thereafter, the tribunal framed three issues and

eventually came to hold that the absence of the respondent - workman did

not amount to misconduct and, therefore, declined to grant approval to the

management DTC under Section 33(2)(b) of the Act vide order dated

26.2.2003.

3. Being dissatisfied with the aforesaid order, the DTC invoked the

jurisdiction of this Court and the learned Single Judge, placing reliance on

the decision rendered in Delhi Transport Corporation v. Sardar Singh,

2004 (6) SCALE 613, came to hold as follows:

"15. In the present case there is no dispute that the respondent workman did not obtain any proper sanction for his leave. The mere submission of a leave application or a medical certificate is of no consequence unless the leave is duly approved or sanctioned.

LPA 610/2005 page 2 of 27

16. In view of the decision of the Supreme Court referred to above, since the learned Tribunal has refused to grant approval only on the ground that the period of absence was treated as leave without pay which did not amount to misconduct, the absence being undisputed, there is no option but to set aside the order passed and to accord approval to the application filed by the Petitioner under Section 33(2)(b) of the Act."

4. After so holding, the learned Single Judge posed the question what

relief should be granted to the DTC. To adjudicate the said facet, the

learned Single Judge dwelled upon the issue relating to the status enjoyed

by the respondent - workman during the intervening period. The writ

court referred to the decision in Jaipur Zila Sahakari Bhoomi Vikas Bank

Ltd. v. Ram Gopal Sharma and others, (2002) 2 SCC 244 and opined that

when approval is granted, it relates back to the date of the order of

dismissal or discharge and if approval is not granted, it would be deemed

as if the order of dismissal or discharge had never been passed and,

therefore, the employee is deemed to have continued in service entitling

him to all the benefits available without the need for passing a separate or

specific order for his reinstatement. The learned Single Judge has further

opined that the workman has only an accrued right to get his wages and

other benefits and the right gets crystallized or vested in the workman

LPA 610/2005 page 3 of 27 when the approval application is rejected. After so stating, the learned

Single Judge referred to the decisions in Ram Kishan v. Lt. Governor,

National Capital Territory of Delhi & Anr., 2001 VII AD (Delhi) 949,

Rajender Singh v. Delhi Transport Corporation & Anr., 98 (2002) DLT 706

(DB), Randhir Singh v. Delhi Transport Corporation & Anr., 2002 (62) DRJ

536, Rajinder Singh v. DTC & Ors., 104 (2003) DLT 982 and Roshan Singh

v. Delhi Transport Corporation, 105 (2003) DLT 110 to highlight that the

DTC, despite facing rejection orders under Section 33(2)(b) of the Act quite

often, did not reinstate the workman as a consequence of which the

employees were compelled to file writ petitions for reinstatement which

was unnecessary.

5. After taking note of the said decisions, the learned Single Judge

adverted to the facts of the case at hand. He has noted that the order of

dismissal was passed on 28.5.1993. In terms of the decision rendered by

the Apex Court in Ram Gopal Sharma and others (supra), the order of

dismissal was incomplete or inchoate until the tribunal rendered a decision

on the approval application. On 26.2.2003, the tribunal declined to grant

approval to the action of the DTC and, therefore, the workman is deemed

to have been continuing in service as on 26.2.2003 as if the order of

LPA 610/2005 page 4 of 27 dismissal was never passed. The learned Single Judge further held that the

respondent - workman continued in service with such a status at least

until 13.2.2004, when the order dated 26.2.2003 was stayed by this Court.

Thereafter, the learned Single Judge held thus:

"27. Since I have now held that approval under Section 33(2)(b) of the Act was wrongly declined, the Respondent workman would stand dismissed with effect from 28th May, 1993 (the date of the dismissal order). This would be in accordance with the law laid down by the Supreme Court in Ram Gopal Sharma. However, if the law is applied literally and strictly, it will mean that the Respondent workman was wrongly paid his wages for this period (assuming he was so paid) and he should, therefore, refund the amounts received by him from the date of his dismissal. I think this is too harsh and the Supreme Court could not have intended such a result.

28. It has been held on several occasions that the Act is a beneficial legislation and its provisions have to be construed liberally because it is a legislation enacted for the welfare of workers [See for example The Workmen of M/s Firestone Tyre & Rubber Co. of India (P) Ltd. vs. The Management, (1973) 1 SCC 813]. If one proceeds on this basis, it cannot be said by any stretch of imagination that the Act permits an employer to recover wages paid to a workman up to the date when approval under Section 33(2)(b) of the Act is declined or till the date when the order declining approval is stayed by the High Court. Therefore, one has to take a pragmatic and reasonable view of the matter, and after doing so, I am of the opinion that wages and other benefits paid to a workman, till the date when approval is declined and

LPA 610/2005 page 5 of 27 even thereafter until the date when the order declining approval is stayed by the High Court, are required to be paid to him, and if so paid, are not required to be refunded by him."

6. On the basis of the aforesaid, the learned Single Judge proceeded to

issue the directions as follows:

"1. The impugned order dated 26th February, 2003 is set aside. However, the Petitioner will pay to the Respondent workman, all wages and other benefits due to him until 13th February, 2004, that is, the date on which this Court stayed the impugned order. The payments should be made to the Respondent workman within six weeks from today.

2. When any industrial adjudicator declines to grant approval to an order of dismissal or discharge passed under Section 33(2)(b) of the Act, it is obliged to treat the workman as being on duty as per the law laid down by the Constitution Bench of the Supreme Court. Therefore, it must direct the employer to pay to the workman all wages and other benefits due to him until the date of the refusal order and it must also direct payment to be made within a specified and reasonable period of time.

3. When a writ petition is filed challenging an order passed by an industrial adjudicator declining approval under Section 33(2)(b) of the Act, the writ Court also is obliged to treat the Respondent workman as being on duty as per the law laid down by the Constitution Bench of the Supreme Court. Consequently, the Respondent workman is entitled to wages and all other benefits as a result of the refusal by the industrial

LPA 610/2005 page 6 of 27 adjudicator to grant approval under Section 33(2)(b) of the Act until the order of refusal is stayed by the writ Court. Therefore, the writ Court should insist, as a rule, that the employer should pay to the workman his dues until such time as the impugned order continues to operate.

4. When a writ Court sets aside the order passed by an industrial adjudicator declining approval under Section 33(2)(b) of the Act, it will take effect from the date the employer passed the initial order of dismissal or discharge. However, keeping in view that the Act is a beneficial legislation, it must not direct the Respondent workman to refund the amount received by him towards wages and other benefits."

7. Assailing the legal sustainability of the order, it is submitted by

Mr.Khan that once the order of non-approval is quashed and a conclusion

is arrived at by the learned Single Judge that the order of dismissal would

be valid with effect from 28th May, 1993, there was no justification to issue

a direction for grant of all wages and benefits from 26th February, 2003 till

13th February, 2004, the date the writ Court stayed the impugned order, in

the absence of a statutory command or stipulation in the Act. It is his

further submission that the order of approval has to date back to the date

of dismissal and the learned Single Judge having so held could not have

invoked the concept of beneficent legislation. Mr. Khan has also urged

LPA 610/2005 page 7 of 27 that the decisions relied upon by the learned Single Judge with regard to

the action and attitude of the DTC would not empower or clothe the writ

court with jurisdiction to issue a direction for payment for the interregnum

period which has no sanction of law.

8. Mr. Mahabir Singh, learned senior counsel, per contra, canvassed

that the order passed by the learned Single Judge is absolutely impeccable

because the workman continues to be in service till the order of dismissal

is approved and as in the present case, since the order of non-approval

was challenged almost after a year, the direction for payment of wage is

justified. It is urged by him that when a discretionary relief is granted by

the writ court, the same should not be dislodged in an intra-court appeal.

9. At the very outset, we may fruitfully refer to the decision in Ram

Gopal Sharma and others (supra), where the Constitution Bench was

addressing the following proposition:

"If the approval is not granted under Section 33(2)(b) of the Industrial Disputes Act, 1947, whether the order of dismissal becomes ineffective from the date it was passed or from the date of non-approval of the order of dismissal and whether failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative?"

LPA 610/2005 page 8 of 27

10. Thereafter, their Lordships referred to the decisions in P.H.Kalyani

v. Air France, Calcutta, AIR 1963 SC 1756, Strawboard Mfg. Co. v.

Govind, AIR 1962 SC 1500, Tata Iron & Steel Co. Ltd. v. S.N. Modak, AIR

1966 SC 380 and held thus:

"13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000/- or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The

LPA 610/2005 page 9 of 27 proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is not void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman.

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 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)

LPA 610/2005 page 10 of 27 dismissing or discharging an employee brings an end of relationship of the 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. 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 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A 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 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33-A 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

LPA 610/2005 page 11 of 27 dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33-A 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."

Thereafter, their Lordships proceeded to state as follows:

"18. In view of what is stated above, we respectfully agree with and endorse the view taken in the case of Strawboard (supra) and Tata Iron & Steel Co. (supra) and further state that the view expressed in Punjab Beverages (P) Ltd. v. Suresh Chand, (1978) 2 SCC 144 on the question is not the correct view. The question raised in the beginning of this judgment is answered accordingly."

11. It is worth noting that in Tata Iron & Steel Co. Ltd. (supra), their

Lordships have opined thus:

"It is now well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction; and stated generally, the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal, and must apply to the specified authority for approval of his action at the same time, or within such reasonably short time thereafter as to form part of the same transaction. It is also settled that if approval is granted, it takes effect from the date of the order passed by the employer for

LPA 610/2005 page 12 of 27 which approval was sought. If approval is not granted, the order of dismissal or discharge passed by the employer is wholly invalid or inoperative, and the employee can legitimately claim to continue to be in the employment of the employer notwithstanding the order passed by him dismissing or discharging him. In other words, approval by the prescribed authority makes the order of discharge or dismissal effective; in the absence of approval, such an order is invalid and inoperative in law.

X X X X

...the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the Tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondent's services.

[Emphasis supplied]

12. In D.C. Roy v. Presiding Officer, (1976) 3 SCC 693, their Lordships

referred to the decision of the Constitution Bench in P.H.Kalyani (supra)

and relied on the following observations:

"The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the labour court has only to see whether there was a prima facie case for dismissal, and

LPA 610/2005 page 13 of 27 whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the labour court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the labour court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made."

After placing reliance on the said observations, their Lordships held

thus:

"These observations directly cover the case before us because though the labour court, in the instant case, found that the inquiry was defective as it infringed the principles of natural justice, it came to the conclusion after considering the evidence adduced before it, that the dismissal was justified. The award of the labour court must therefore relate back to the date when the order of dismissal was passed on the termination of the domestic inquiry."

LPA 610/2005 page 14 of 27

13. At this juncture, it is useful to refer to certain authorities pertaining

to the applicability of the doctrine of relation back. In Shri Parmeshwari

Prasad Gupta v. Union of India, (1973) 2 SCC 543, their Lordships were

dealing with an issue in which the Board of Directors of a company

affirmed the earlier resolution in a subsequent meeting which was

properly convened. It is worth noting that the earlier meeting was

defective and, therefore, the resolution terminating the services of the

General Manager was treated to be invalid. While dealing with the effect

of the subsequent meeting, their Lordships have held thus:

"Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16.12.1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorized to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on 17.12.1953."

LPA 610/2005 page 15 of 27

14. In High Court of Judicature for Rajasthan v. P.P. Singh, (2003) 4

SCC 239, after referring to the decision in Shri Parmeshwari Prasad Gupta

(supra), it has been opined that even in a case where an initial action is

illegal, the same can be ratified by a body competent therefor.

15. In Maharashtra State Mining Corpn. v. Sunil, (2006) 5 SCC 96, their

Lordships have expressed thus:

"7. The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently "rectified" by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim ratihabitio mandato aequiparatur, namely "a subsequent ratification of an act is equivalent to a prior authority to perform such act". Therefore ratification assumes an invalid act which is retrospectively validated."

16. In Delhi Jal Board v. Mahinder Singh, (2000) 7 SCC 210, while

dealing with the doctrine of relation back in the backdrop of consideration

by a Departmental Promotion Committee, the Apex Court has opined

thus:

LPA 610/2005 page 16 of 27 "5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench."

17. In Graphite India Ltd. and another v. Durgapur Projects Ltd. and

others, (1999) 7 SCC 645, a two-Judge Bench of the Apex Court held that

the controversy related to the grant of approval to effect the increase in

tariff. It is worth noting that the approval was not there initially. In that

LPA 610/2005 page 17 of 27 context, the Lordships opined that when the approval was granted by the

State Government by its letter dated 27.4.1992, the approval related back

and the revision would be effective from 8.4.1991. The contention that the

letter dated 27.4.1992 was not an approval of the increase in tariff effective

from 8.4.1991 was not accepted.

18. On a perusal of the aforesaid enunciation of law, we have no

hesitation in mind that the doctrine of relation back would get squarely

attracted. In fact, in Ram Gopal Sharma and others (supra), their

Lordships approved what has been stated in Tata Iron & Steel Co. Ltd.

(supra) wherein it has been laid down that if approval is granted, it takes

effect from the date of the order passed by the employer for which the

approval was sought. The writ court has clearly and correctly held that

approval under Section 33(2)(b) was wrongly declined and, hence, the

respondent - workman would stand dismissed w.e.f. 28.5.1993. The said

view has also been expressed in the case of Ram Kishan (supra) wherein

this Court has held as follows:

"(g) An order of discharge or dismissal passed under Section 33(2)(b) is incomplete and inchoate until approval is granted by the Tribunal in terms of Section 33(2)(b). The relationship of employer and employee is

LPA 610/2005 page 18 of 27 not effectively terminated by passing the order of discharge or dismissal until approval thereto is accorded by the Tribunal in terms of Section 33(2)(b). By passing the order of discharge or dismissal, de facto relationship of employer and employee is ended but not de jure.

(h) If approval is granted by the Tribunal it takes effect from the date of the order passed by the employer for which approval was sought."

19. The learned Single Judge, after expressing the opinion as aforesaid,

has held that when a writ petition is filed challenging an order passed by

an industrial adjudicator declining approval under Section 33(2)(b) of the

Act, the writ Court also is obliged to treat the respondent-workman as

being on duty as per the law laid down by the Constitution Bench of the

Supreme Court. Consequently, the respondent-workman would be

entitled to wages and all other benefits as a result of the refusal by the

industrial adjudicator to grant approval under Section 33(2)(b) of the Act

until the order of refusal is stayed by the writ Court and, therefore, the

writ Court should insist, as a rule, that the employer should pay to the

workman his dues until such time as the impugned order continues to

operate. It was further held that when a writ court sets aside the order

passed by an industrial adjudicator declining approval under Section

LPA 610/2005 page 19 of 27 33(2)(b) of the Act, it will take effect from the date the employer passed the

initial order of dismissal or discharge. However, keeping in view that the

Act is a beneficial legislation, it must not direct the respondent workman

to refund the amount received by him towards wages and other benefits.

20. To arrive at the said conclusion, he has referred to the attitude of the

DTC in forcing employees to file writ petitions under Article 226 of the

Constitution, as the DTC did not reinstate the employees despite non-grant

of approval. Needless to emphasize, a writ petition can be filed for getting

the benefit as has been held in T.N. State Transport Corporation v.

Neethivilangan, Kumbakonam, (2001) 9 SCC 99. In the said case, in

paragraphs 16 and 17, the Apex Court has opined thus:

"16. From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate a departmental enquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains order of approval from the Tribunal. 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

LPA 610/2005 page 20 of 27 approval to the action taken by the employer and rejects the petition filed under section 33(2)(b) of the Act on merits 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 employee 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 Tribunal's 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 merits. 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 place under suspension and an enquiry initiated against him.

17. In the facts and circumstances of the case it is our view that the High Court committed no illegality in issuing a direction to the appellant for reinstating the respondent and paying him the back wages."

21. The core issue that emerges for consideration is whether the learned

Single Judge is justified in issuing the direction for grant of wages from the

date of the order, i.e., 26.2.2003 to 13.2.2004, i.e., till the order of stay was

LPA 610/2005 page 21 of 27 passed by this Court. He has so directed on the basis that the employer

cannot be entitled to recover the wages regard being had to the beneficial

nature of the legislation. He has also held that the workman is entitled to

wages and all other benefits as a result of the refusal by the industrial

adjudicator to grant approval under Section 33(2)(b) of the Act until the

order of refusal is stayed by the writ court and, therefore, the writ Court

should insist, as a rule, that the employer should pay to the workman his

dues until such time as the impugned order continues to operate. On a

careful scrutiny of the order passed by the learned Single Judge, we are of

the considered opinion that the directions given or views expressed are, in

fact, not supported by any statutory mandate. How a writ court would

pass an interim order or what conditions can be stipulated at that time

cannot be laid down in a strait jacket formula unless there is a statutory

command. The learned Single judge, as we perceive, has held that unless

there is an order of stay, the workman is entitled to get the wages but there

can be no recovery. If a workman has been paid by the employer, possibly

there may not be a direction for refund or recovery regard being had to

several aspects including the beneficent nature of the legislation. But to

hold and opine that the workman will be entitled to the wages as a matter

LPA 610/2005 page 22 of 27 of legal right despite quashing the order declining to approve the order of

dismissal by the High Court is not acceptable. It is a command to do

something which the law does not warrant because the order of non-

approval becomes extinct when the writ court finds that the same has been

unjustifiably denied. The doctrine of relation back gets squarely attracted.

It operates in full force and applies to the fullest extent.

22. It is seemly to state here that the non-realization of the amount paid

to the workman is in the sphere of equity but the issue of a mandatory

direction or a command is realization or fructification of a right. It is well

settled in law that fair play and equity must yield to the provisions of the

statute. In this context we may profitably reproduce a passage from

Madamanchi Ramappa and another v. Muthaluru Bojappa, AIR 1963 SC

1633:

"12. ....It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law...."

LPA 610/2005 page 23 of 27

23. In this context, we may fruitfully refer to a three-Judge Bench

decision in Roshanlal Kuthalia & Ors. v. R.B. Mohan Singh Oberoi, (1975)

4 SCC 628 wherein it has been held thus:

"29. .....

Certainly when law speaks in positive terms, equity may not be invoked against it; but while applying the law the Court can and must ameliorate unwitting rigours inflicted by legalisms, where there is room for play, by the use of equity....."

24. In Council for Indian School Certificate Examination v. Isha Mittal

& Anr., (2000) 7 SCC 521, the Apex Court has stated thus:

"4. It is the obligation of the High Court to decide the matters before it in accordance with law. If the law was, as the High Court observes in the passage quoted above, in favour of the appellant before it, it was obliged to make an order in favour of the appellant. Considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law."

25. In P.M. Latha & Anr. v. State of Kerala & Ors., (2003) 3 SCC 541,

their Lordships have held thus:

LPA 610/2005 page 24 of 27 "13. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law......"

26. In Raghunath Rai Bareja & Anr. v. Punjab National Bank & Ors.,

(2007) 2 SCC 230, their Lordships have expressed thus:

29. ....it is well settled that when there is a conflict between law and equity, it is the law which has to prevail, in accordance with the Latin maxim "dura lex sed lex", which means "the law is hard, but it is the law". Equity can only supplement the law, but it cannot supplant or override it.

27. In B. Premanand & Ors. v. Mohan Koikal & Ors., 2011 (3) Scale 598,

it has been ruled thus:

"13. ....No doubt, equity may be in favour of the respondents because they were selected earlier, but as observed earlier, if there is a conflict between equity and the law, it is the law which must prevail..."

28. In view of the aforesaid enunciation of law, the equity cannot weigh

in favour of a workman when the order refusing to grant approval passed

by the industrial adjudicator is set aside in exercise of inherent jurisdiction

by the writ court. While exercising the equitable jurisdiction, that amount

LPA 610/2005 page 25 of 27 paid to the workman may not be recovered or he should not be compelled

to refund the same, but issuing of a direction to pay him the wages inspite

of the order of disapproval being axed by the High Court, which is a

command and the said direction is in the realm of law, as a result of which

the equitable consideration would come in conflict with law. Thus, such a

direction, not being sanctioned by the authority of law, cannot be issued.

29. The direction issued by the learned Single Judge can be viewed from

another angle. On a proper appreciation of the directions issued by the

learned Single Judge in his conclusion in paragraph 3, the same, in our

opinion, is in the nature of an introduction of a legislative mandate. We

are disposed to think so as there is no provision in the Act to cover such a

situation. In this context, we may refer with profit to the decision in

Chandigarh Administration and others v. Manpreet Singh and others,

(1992) 1 SCC 380 wherein the Apex Court has held that the High Court can

strike down an offending rule on stated ground of invalidity and direct the

authority to re-frame it and act accordingly but cannot itself re-frame it

and issue directions.

LPA 610/2005 page 26 of 27

30. In Municipal Committee, Patiala v. Model Town Residents Assn.

and others, (2007) 8 SCC 669, it has been held thus:

"27. It is so well settled and needs no restatement at our hands that the legislature is supreme in its own sphere under the Constitution subject to the limitations provided for in the Constitution itself. It is for the legislature to decide as to when and in what respect and of what subject-matter the laws are to be made. It is for the legislature to decide as to the nature of operation of the statutes."

31. In view of our aforesaid analysis, we are unable to concur with the

view expressed by the learned Single Judge that there should be payment

of amount from 26th February, 2003 to 13th February, 2004 and further, with

due respect, we are also not in agreement with the conclusion No.3 arrived

at by the learned Single Judge and, accordingly, both are set aside.

32. Consequently, keeping in view the restricted and limited prayer

made by the appellant - DTC, the appeal is allowed. There shall be no

order as to costs.

                                                     CHIEF JUSTICE



APRIL 4, 2011                                        SANJIV KHANNA, J.
dk

LPA 610/2005                                                page 27 of 27