Banwari Lal vs The Management Of M/S Moolchand ...
2011 Latest Caselaw 2225 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 27th April, 2011.

+                           W.P.(C) 12755/2009

%        BANWARI LAL                                           ..... Petitioner
                            Through:      Mr. N.A. Sebastian, Adv.

                                   Versus

         THE MANAGEMENT OF M/S MOOLCHAND
         KHARAITIRAM HOSPITAL                     ..... Respondent
                     Through: Mr. Jatin Zaveri, Adv.
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 writ petition impugns the award dated 8 th April, 2008 of the

Labour Court deciding the preliminary issue framed as to the

maintainability of the industrial dispute and holding that approval under

Section 33(2)(b) of the I.D. Act having been granted to the respondent

employer of its action of terminating the services of the petitioner for

misconduct, the dispute raised by the petitioner to be barred on the

principle of res judicata.

2. Notice of the writ petition was issued and a counter affidavit has

been handed over by the counsel for the respondent in the Court and taken

on record.

3. Being prima facie of the opinion that the matter needs to be

remanded to the Labour Court, the writ petition has been taken up for

hearing out of turn, at the show cause notice stage only.

4. I have on consideration of the case law on the subject, held in DTC

Vs. Shyam Lal ILR (2010) V Delhi 431 that the scope of a proceeding

under Section 33(2)(b) is entirely different from a reference on a dispute

under Section 10 of the Act and in DTC Vs. Rishi Prakash (2010) IV AD

(Delhi) 399 & DTC Vs. Nihal Singh 169 (2010) DLT 727 held that

findings under Section 33(2)(b) cannot operate as res judicata in a

reference under Section 10. Recently in judgment dated 18 th April, 2011 in

W.P.(C) No.10800/2005 titled DTC Vs. Sudan Pal, the issue was revisited

in another context. The counsel for the petitioner has also in this regard

relied upon paragraphs 24 to 26 of Punjab National Bank Ltd. Vs. All

India Punjab National Bank Employees Federation AIR 1960 SC 160.

5. It has as such been enquired from the counsel for the respondent

employer as to how the order impugned in this writ petition can be

sustained.

6. The counsel for the respondent employer has contended that

pursuant to the amendment in the Industrial Disputes Rules as applicable to

Delhi, permitting an individual workman also to file a dispute with the

Labour Court without requiring a reference from the appropriate

Government, the position in law has changed. He also in this regard relies

upon para 14 of the Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs.

Ram Gopal Sharma (2002) 2 SCC 244. His contention is that though

preliminary issue as to the validity of the inquiry preceding termination,

was in proceedings under Section 33(2)(b) held against the respondent

employer but the respondent employer had subsequently proved the

misconduct before the Industrial Tribunal and the Industrial Tribunal upon

being satisfied that the workman had committed misconduct and the

punishment of termination was proportionate to the misconduct granted

approval under Section 33(2)(b). He contends that the same question

cannot be agitated again in the Labour Court and the Labour Court cannot

sit in appeal over the decision of the Industrial Tribunal on the application

under Section 33(2)(b).

7. I have also in Shyam Lal (supra) observed that the Industrial

Adjudicators appear to have, over the years, lost the distinction between

the two proceedings and the difference having been blurred. However the

fact remains that the scope of enquiry in a proceeding under Section

33(2)(b) is only to determine whether the action of which approval is being

sought, is not to punish or to prejudice the workman in the pending

dispute. The Industrial Adjudicator in a proceeding under Section 33(2)(b)

is not required to go into the merits of the misconduct. The counsel for the

petitioner is correct in law in contending that the view even if formed as to

misconduct in a proceeding under Section 33(2)(b), is at best a prima facie

view.

8. Once it is held that the Industrial Tribunal in a proceeding under

Section 33(2)(b) has no jurisdiction to return a finding on the merits of the

dispute, the finding if any of the Industrial Tribunal in such proceedings,

would be without jurisdiction and cannot be res judicata in a subsequent

appropriately constituted proceedings before an appropriate fora.

Reference in this regard may be made to:

(a) Shankarlal Patwari Vs. Hiralal Murarka AIR (37) 1950 PC

(b) Mangharam Chuharmal Vs. B.C. Patel AIR 1972 Bombay

(c) Ram Kishan Vs. Bharat Bhushan 1979 FLR 194.

(d) UOI Vs. Ranchi Municipal Corporation, Ranchi (1996) 7

SCC 542.

(e) Rajinder Parshad Jain Vs. Bal Gopal Das 77 (1999) DLT

478 (DB).

(f) Savitri Devi Vs. Fashion Linkers 95 (2002) DLT 893.

9. The Apex Court in Jaipur Zila Saharaki Bhoomi Vikas Bank Ltd.

(supra) was not faced with the aforesaid question. A stray observation in

the judgment not concerned with the legal issue falling for adjudication,

cannot be relied upon out of context. Even otherwise, all that has been

observed in para 14, is that the Industrial Tribunal in Section 33(2)(b)

proceeding is to examine the bona fide of the action of which approval is

sought and as to whether it was by way of victimization or unfair labour

practice. The said judgment cannot be read as overruling the earlier

judgments expressly on the difference in nature and character of the two

proceedings.

10. As far as the two judgments in DTC Vs. Surinder Pal

MANU/DE/8202/2007 and J.S. Joseph Vs. Commercial Manager, Air

India MANU/DE/9855/2006 referred to by the Labour Court are

concerned, both judgments of Single Judges of this Court stand set aside,

in Surinder Pal Vs. Management of DTC MANU/DE/1559/2008 and in

judgment dated 16th December, 2008 in LPA No.707/2008 titled J.S.

Joseph Vs. The Commercial Manager, Air India respectively.

11. The order is accordingly set aside; resultantly the dispute raised by

the petitioner is maintainable before the Labour Court. The parties are

directed to appear before the Labour Court concerned on 24 th May, 2011.

Since considerable time has been lost, the Labour Court is requested to

deal with the matter expeditiously.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 27, 2011 bs