Ranbir Singh vs Delhi Transport Corporation
2013 Latest Caselaw 928 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       LPA 76/2013
        RANBIR SINGH
                                                        ..... Appellant
                     Through: Mr Ashwini Kumar and Mr Puneet
                     Saini, Advs.
                     versus
        DELHI TRANSPORT CORPORATION
                                                     ..... Respondent
                     Through: Ms Saroj Bidawat, Adv.

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN

                               ORDER

% 25.02.2013

The appellant was employed with the respondent. Vide order dated 14.01.1993, the respondent dismissed the appellant from service and remitted one month's wages to him. Since at the time the aforesaid order dated 14.01.1993 was passed, the appellant was concerned in an industrial dispute, which was pending adjudication, a petition under Section 33(2)(b) of Industrial Disputes Act was filed by the respondent, seeking approval to remove the appellant from service. On an industrial dispute being raised by the appellant with respect to his removal vide order dated 14.01.1993, the said dispute was referred to the Industrial Tribunal for adjudication. The Industrial Tribunal vide order dated 28.08.2002, dismissed the application filed by the respondent under Section 33(2)(b) of the Act. Vide subsequent order dated 01.10.2003, the said Tribunal answered the Reference in favour

of the appellant and set aside the order, whereby he was dismissed from service.

2. WP(C) No. 4848/2003 was filed by the respondent Delhi Transport Corporation, impugning the order dated 28.08.2002, whereby its application under Section 33(2(b) of the Act was dismissed. Another Writ Petition being WP(C) No. 16034/2004 was filed by the respondent, impugning the Award dated 01.10.2003. Vide order dated 03.02.2005, the writ petition filed by the respondent, challenging the order dated 28.08.2002 was allowed and the matter was remitted back to the Tribunal for fresh decision on the said application. Vide order dated 16.07.2005, the Tribunal allowed the application filed by the respondent under Section 33(2)(b) of the Act, thereby granting requisite approval required under the said provision.

3. In WP(C) No. 16034/2004, whereby the Award dated 01.10.2003 was challenged by the respondent, the learned Single Judge, on 25.04.2007, passed the following order:-

"As noted above and in view of the fact that during the pendency of the present writ petition, pursuant to the order passed by a Learned Single Judge of this Court in WP(C) No. 4848/2008, the parties approached the Industrial Tribunal for a decision afresh on the approval application filed by the petitioner under Section 33(2)(b) of the I.D. Act (earlier rejected vide order dated 28.08.2002), an order dated 16.07.2005 has been passed by the Industrial Tribunal allowing the application of the petitioner and upholding the order of termination of the services of the respondent, nothing further survives in the present writ petition. The same is disposed of accordingly."

4. It would be seen from a perusal of the above-referred order that the Award dated 01.10.2003 was not set aside by the learned Single Judge, who was of the view that in view of the order passed in WP(C) No. 4848/2003, nothing survived in the petition. In our view, irrespective of the order passed by this Court in WP(C) No. 4848/2003, which was concerned only with the correctness of the order dated 28.08.2002, rejecting the application under Section 33(2)(b) of the Act, the learned Single Judge should have decided the writ petition, whereby challenging the Award dated 01.10.2003 was challenged on the merit of the said petition. Be that as it may, the facts remains that the Award dated 01.10.2003 was not the subject matter of WP(C) No. 4848/2003, which was decided on 03.02.2005 and it was not set aside/quashed vide order dated 25.04.2007. Admittedly, the order passed on 25.04.2007 was not challenged by the respondent and consequently, the said order became final. As a result, the Award dated 01.10.2003 became enforceable.

5. We would like to point out at this stage that even after grant of approval under Section 33(2)(b) of the Act, the Labour Court/Tribunal is required to answer the Reference made to it on merits by deciding as to whether the disciplinary action taken by the Management was justified or not. In the event of permission under Section 33(2)(b) of the Act not being granted, the disciplinary action taken by the Management is liable to be quashed/set aside for want of permission alone and the Labour Court/Tribunal need not go into merit of the dispute referred to it for adjudication. If, however, permission under Section 33(2)(b) of the Act is granted, the Labour Court/Tribunal is required to examine the disciplinary

action taken by the Management on merits and answer the Reference accordingly. If the workman has already raised an industrial dispute with respect to the disciplinary action such as dismissal, removal, etc. taken by the employer, and such dispute is pending before the Labour Court/Tribunal for adjudication, the Labour Court/Tribunal even on grant of approval under Section 33(2)(b) of the Act, is required to answer the Reference on merit. The view taken by it, while allowing the application under Section 33(2)(b) cannot be the ground for not answering the Reference or to decide it only in favour of the workman. The Labour Court/Tribunal is required to record an independent finding in the Reference, on the basis of the material produced during such proceedings.

6. Since the Award dated 01.10.2003 became final on account of the same having not been set aside in WP(C) No. 16034/2004, the appellant became entitled to implementation of the said Award, by his reinstatement in terms of the said award.

7. The learned Single Judge did not examine the order dated 16.07.2005 on merits solely on the ground that the said order was impugned seven years after it was passed. Since the Award dated 01.10.2003 remains valid and enforceable even after grant of permission under Section 33(2)(b) of the Act vide order dated 16.07.2005, we need not examine the order passed in WP(C) No. 7458/2012, on its merit.

8. During the course of arguments, the learned counsel for the appellant, on instructions from the appellant, who was present in the Court, stated that the appellant is ready to accept reinstatement with continuity of service, without any back wages. In view of the concession made by the appellant,

we dispose of this appeal by directing the respondent to reinstate the appellant with effect from 01.03.2013, with continuity of service, but without any back wages, in compliance of the Award dated 01.10.2003.

The appeal stands disposed of accordingly.

CHIEF JUSTICE

V.K. JAIN, J FEBRUARY 25, 2013 BG