Hotel Taj Palace vs Shri Raj Pal Duhan (Deceased) ...
2015 Latest Caselaw 8556 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                    Judgment delivered on: November 18, 2015

%   1. W.P.(C) No. 3229/2004


    HOTEL TAJ PALACE                                                .....Appellant
                  Through:                   Mr. Vinay Bhasin, Senior Advocate with
                                             Ms. Poonam Das, Advocate

                            versus

    SHRI JAGAT SINGH & ORS                      .....Respondents
                  Through: Mr. Sanjoy Gosh, Advocate for R-1 with
                           Mr. Yash S. Vijay.

    2. W.P.(C) No. 3739/2004


    HOTEL TAJ PALACE                                               .....Petitioner
                  Through:                   Mr. Vinay Bhasin, Senior Advocate with
                                             Ms. Poonam Das, Advocate

                            versus

    L.L. SHAH AND ANR                                               .....Respondents
                  Through:                   Mr. Sanjoy Gosh, Advocate with Mr.
                                             Yash S. Vijay for R-1.
                                             Ms. Sakshi Popli for GNCTD.

                                                            AND

    3. W.P.(C) No. 624/2004


    HOTEL TAJ PALACE                                                .....Petitioner
                  Through:                   Mr. Vinay Bhasin, Senior Advocate with
                                             Ms. Poonam Das, Advocate


    W.P. (C) No. 3229/2004, W.P. (C) No. 3739/2004 and W.P. (C) No. 624/2004   Page 1 of 10
                              versus

     SHRI RAJ PAL DUHAN (Deceased)                                              .....Respondents
     THROUGH LEGAL REPRESENTATIVES
     AND ORS.

                             Through:         Mr. Sanjoy Gosh, Advocate with Mr.
                                              Yash S. Vijay for R-1.
                                              Ms. Sakshi Popli, Advocate for GNCTD.


     CORAM:
     HON'BLE MR. JUSTICE I.S.MEHTA

                                       JUDGMENT

I. S. MEHTA, J.

1. The present Writ-Petitions i.e. (i) W.P.(C) No. 3229/2004, (ii) W.P.

(C) No. 3739/2004, and (iii) W.P. (C) 624/2004 under Articles 226 and

227 of the Constitution of India are arising out of Awards dated

06.08.2003, 20.09.2003 and 06.08.2003 respectively, passed by the

Presiding Officer, Labour Court No. VII, Delhi (hereinafter referred to as

the „learned Labour Court/Industrial Adjudicator‟) in I.D. Nos. 673/96,

672/96 and 563/96 respectively.

2. The brief facts stated are that the respondent-workmen i.e., (i) Shri

Jagat Singh, security guard, (ii) Shri LL. Shah, security guard and (iii)

Late Raj Pal Duhan, doorman were appointed w.e.f. 01.09.1984,

04.06.1984 and 24.07.1982 respectively, with the petitioner-management.

It is alleged that the petitioner-management was indulging in unfair

labour practices and the respondent-workmen formed the 'Taj Palace

Intercontinental Hotel Karamchari Union' and filed a charter of demands

with the petitioner-management, which was not accepted. Consequently,

the industrial dispute between the worker's Union and petitioner-

management as I.D. No. 6/1992 was raised by the Union Workers. The

petitioner-management got annoyed with the workmen due to their

demands and started victimising the workers and office bearers of the

Union, and charge-sheets dated 07.11.1991, 11.03.1992 and 15.11.1991

were issued against the respondent-workmen, i.e. (i) Shri Jagat Singh, (ii)

Shri L.L. Shah and (iii) Late Raj Pal Duhan respectively. The respondent-

workmen replied to the aforesaid charge-sheets. An enquiry was

subsequently conducted and Shri Jagat Singh and Shri L.L. Shah were

terminated on 23.12.1994 and 02.08.1994 respectively and Late Raj Pal

Duhan too was terminated.

Thereafter, the petitioner-management filed approval applications

for seeking approval of the learned Industrial Adjudicator in respect of

the aforesaid orders of termination. Further, the respondent-workmen,

i.e., Shri Jagat Singh, Shri L.L. Shah, and Late Raj Pal Duhan raised the

industrial dispute pertaining to their alleged illegal termination.

Consequently, Secretary (Labour), Government of NCT of Delhi, made

the following references to the learned Industrial Adjudicator under

Section 10 of the Industrial Disputes Act, 1947:-

i) Reference No. F-24 (3555)/96-Lab./41616-20 dated 20.08.1996

"Whether dismissal of Sh. Jagat Singh from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

ii) Reference No. F-24 (3554)/96-Lab./41611-15 dated 29.08.1996

"Whether dismissal of Sh. L.L. Shah from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

iii) Reference No. F-24 (3708)/96-Lab./37412-16 dated 13.08.1996

"Whether dismissal of Sh. Raj Pal Duhan from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

The respondent-workmen filed their replies to the approval

applications made under Section 33(2)(b) of the Industrial Disputes Act,

1947 moved on behalf of petitioner-management before the learned

Industrial Adjudicator. However, during the pendency of the I.D. No.

6/1992, the petitioner-management moved an application before the

learned Industrial Adjudicator for withdrawal of its application under

Section 33(2)(b) of the Industrial Disputes Act, 1947.

Consequently, the learned Industrial Adjudicator passed the

impugned Awards dated 06.08.2003, 20.09.2003 and 06.08.2003 in (i)

I.D. Nos. 673/96, (ii) 672/96 and (iii) 563/96 respectively in favour of the

respondent-workmen on the ground that the approval application was

dismissed as withdrawn by the Industrial Tribunal by placing reliance on

Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma

and Ors., AIR 2002 SC 643.

Aggrieved by the aforesaid Awards, the petitioner-management,

i.e., M/s Hotel Taj Palace, preferred the present Writ Petitions, i.e., (i)

W.P. (C) No. 3229/2004, (ii) W.P(C) No. 3739/2004 and (iii) W.P. (C)

624/2004 respectively.

3. The learned counsel appearing on behalf of the petitioner-

management has drawn the attention of this Court that despite the parties

leading evidence on all issues at length before the learned Industrial

Adjudicator, he did not give opportunity to advance arguments on all

issues. Rather, the learned Industrial Adjudicator wrongly took a shorter

route by relying on the judgment, i.e., Jaipur Zila Sahakari Bhoomi

Vikas Bank Ltd. vs. Ram Gopal Sharma and Ors (Supra), in existence

of the reference under Section 10 of the Industrial Disputes Act, 1947 and

passed the impugned Awards.

The learned counsel appearing on behalf of the petitioner-

management has further argued that the judgment relied upon by the

learned Industrial Adjudicator is not applicable to the instant case as

Jaipur Zila's case (Supra) does not deal with Section 10 of the Industrial

Disputes Act, 1947.

The learned counsel has further argued that the scope of reference

under Section 10 of said Act is much wider than Section 33(2)(b) of the

said Act and once a reference is made under Section 10, Section 33(2)(b)

becomes redundant. Therefore, the learned Industrial Adjudicator should

have adjudicated the industrial dispute on merits rather than relying solely

on Jaipur Zila's case (Supra).

On the other hand, the learned counsel appearing on behalf of the

respondent-workmen argued that as per the Constitution Bench judgment

rendered in the Jaipur Zila's case (Supra), it was held that the

termination of the workman without completing the approval process is

inchoate because the effect of non-filing or withdrawal of the approval

application under Section 33(2)(b) of the Industrial Disputes Act, 1947

renders the termination illegal. So, the workman is entitled to all the

benefits including the back wages and reinstatement with the continuity

in the service. The learned counsel for the respondent-workman relied

upon the following cases to support his contentions:

a) Air India Ltd. vs. M.H. Mhadgut, 2007(3)BomCR846

b) Ram Kishan vs. Lt. Governor, NCT of Delhi 96 (2002) DLT 145.

4. The instant case bears distinct and peculiar circumstances. The

respondent-workmen, i.e., (i) Shri Jagat Singh, security guard, (ii) Shri

LL. Shah, security guard and (iii) Late Raj Pal Duhan, doorman, were

dismissed from their respective services after holding an alleged valid

enquiry.

5. The factum of pendency of a dispute between the workmen and the

petitioner-management on the date of termination of the aforesaid

workmen is not disputed by the petitioner-management. In these

circumstances, the management was under a legal obligation to file the

approval application under Section 33(2)(b) of the Industrial Disputes

Act, 1947 qua against the respondent-workmen for their action of

dismissal of the respondent-workmen from their services and

consequently, the petitioner-management did abide by the legal

obligations entrusted under the law by filing the same, which was

contested on merits by the respondent-workmen.

6. It seems that after filing the approval application under Section 33

(2)(b) qua against the respondent-workmen, i.e., (i) Shri Jagat Singh,

security guard, (ii) Shri LL. Shah, security guard and (iii) Late Raj Pal

Duhan, doorman, the respondent-workmen themselves too raised an

industrial dispute and filed complaint against the petitioner-management

challenging their dismissal from service, which were referred by the

appropriate Government to the learned Industrial Adjudicator. The

following are the references:-

i) Reference No. F-24 (3555)/96-Lab./41616-20 dated 20.08.1996

ii) Reference No. F-24 (3554)/96-Lab./41611-15 dated 29.08.1996

iii) Reference No. F-24 (3708)/96-Lab./37412-16 dated 13.08.1996

7. It is apparent that the petitioner-management on the one hand, is

seeking approval of their action of dismissal of respondent-workmen and

claiming that a valid enquiry was held and on the other hand, the

respondent-workmen too are challenging the validity of their dismissal,

which was referred to the learned Industrial Adjudicator and

consequently, giving rise to the existence of two parallel proceedings

before the Industrial Adjudicator. The parties led their evidence on the

respective issues and in the meanwhile, the petitioner-management

preferred to withdraw their approval application under Section 33(2)(b)

against the respondent-workmen, leaving behind the dispute raised by the

respondent-workmen under Section 10 of the Industrial Disputes Act,

1947.

8. However, the learned Industrial Adjudicator, in haste, without

appreciating the evidence on record led by the parties on the issue

pertaining to the reference made to him, passed the impugned Awards

dated 06.08.2003, 20.09.2003 and 06.08.2003 solely relying on the

judgment, i.e., Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram

Gopal Sharma and Ors. (Supra) without replying to the terms of

reference sent to the learned Industrial Adjudicator under Section 10 of

Industrial Disputes Act, 1947.

9. The judgment, i.e., Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.

vs. Ram Gopal Sharma and Ors. (Supra) loses its significance in

presence of the reference under Section 10 of the Industrial Disputes Act,

1947. Reliance is placed on the judgment rendered by this Court in the

case titled as All India Women's Conference vs. Raj Karan and

Another, 2010-IV-LLJ-467 (Del). The judgments relied upon by the

respondent-workmen, i.e., Air India Ltd. vs. M.H. Mhadgut, 2007 (3)

BomCR 846 and Ram Kishan vs. Lt. Governor, NCT of Delhi 96 (2002)

DLT 145 are not helpful to the respondent-workmen.

10. In the instant case, the learned Industrial Adjudicator has passed

the aforesaid impugned Awards in haste overlooking the evidence

adduced by the parties available on record thereby failing to decide the

reference on merits. Therefore, the impugned Awards dated 06.08.2003,

20.09.2003 and 06.08.2003 are set aside and consequently, the present

matters are remanded back to the learned Industrial Adjudicator with a

direction to pass fresh Award after considering and appreciating the

evidence available on record and giving due opportunities to the parties as

per law.

11. As such, the parties are directed to appear before the learned

Industrial Adjudicator on 15.12.2015. The learned Industrial Adjudicator

is further directed to dispose of I.D. Nos. i.e., (i) 673/96, (ii) 672/96 and

(iii) 563/96 within a period of three months from the date on which the

parties are directed to appear before the learned Industrial Adjudicator.

Consequently, the present Writ-Petitions, i.e., (i) W.P.(C) No.

3229/2004, (ii) W.P. (C) No. 3739/2004, and (iii) W.P. (C) 624/2004 are

disposed of in the above terms.

The Lower Court record be sent back with a copy of this Judgment.

No order as to costs.

I.S.MEHTA, J

NOVEMBER 18, 2015 j