Delhi High Court
Delhi Transport Corporation vs Surinder Singh & Ors on 2 September, 2015
Author: I. S. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Judgment delivered on: September 02, 2015
% W.P.(C) No. 1905/2004
DELHI TRANSPORT CORPORATION ..... Petitioner
Through: Mr. Sarfaraz Khan and Ms. Saroj
Bidawat, Advocates.
versus
SURINDER SINGH & ORS .....Respondents
Through: Mr. Pradeep Kumar, Adv. for R-1.
Mr. Pankaj Sinha, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT
I. S. MEHTA, J.
1. Challenge is to the impugned order dated 21.03.2003, passed in
O.P. No. 494/93, by the Presiding Officer, Industrial Tribunal - II,
Karkardooma Courts, Delhi (hereinafter referred to as the „learned
Tribunal‟), wherein the learned Tribunal dismissed the approval
application made by the present petitioner under Section 33(2)(b) of the
Industrial Disputes Act, 1947, ignoring the material evidence on record.
2. The brief facts as stated are that the respondent No. 1 i.e., Shri
Surinder Singh (hereinafter referred to as the „respondent-workman'),
was employed as a conductor with the petitioner-management i.e., the
Delhi Transport Corporation. It is alleged that the respondent-workman,
during his employment with petitioner-management, remained absent
from duty without requisite authorisation for a period of 65 days between
March, 1992 to December, 1992. As a result, a charge-sheet being memo
no. RD-3/SP/CS/85/93/1303 dated 23.04.1993 was issued to the
respondent-workman alleging that the acts of the respondent-workman
amounted to misconduct within the meaning of standing orders governing
the conduct of DTC employees. The Senior Manager (Technical) vide
memo no. RT-3/AM(T)/CS-85/93/2778 dated 28.07.1993 issued a show
cause notice proposing to impose the penalty of removal from service
upon the respondent-workman. The respondent-workman tendered his
reply dated 06.08.1993 to the aforesaid show cause notice. Thereafter, the
respondent-workman was removed from the services of the petitioner-
management vide order no. RHN:III/AI(T)/CS-85/93/3073 dated
30.08.1993. The petitioner-management moved an approval application
before the Industrial Tribunal under Section 33(2)(b) of the Industrial
Disputes Act, 1947 praying for approval of the action taken i.e., removal
of respondent-workman from the services of the petitioner-management.
The learned Tribunal vide order dated 28.10.1998 framed the issues and
further additional issue was framed on 03.09.2002.
Consequently, vide order dated 21.03.2003, the learned Tribunal
rejected the approval sought by the petitioner-management and dismissed
the approval application under Section 33(2)(b) of the Industrial Disputes
Act, 1947 on the ground that the applicant-petitioner did not produce any
evidence to show that full one month's wages were remitted to the
respondent as per the provisions of Section 33(2)(b) of the Industrial
Disputes Act, 1947. Aggrieved by the same, the petitioner-management
has preferred the present Writ Petition.
3. The learned counsel appearing on behalf of the petitioner-
management had argued that the learned Tribunal had erroneously
decided the issue of payment of one month's wages to the respondent-
workman without appreciating the material available on record. It is
further alleged that one month's wages were already paid to the
respondent-workman through money order and the same was received by
the respondent-workman.
The learned counsel causing appearance on behalf of the
respondent-workman has submitted that onus lies on the petitioner-
management to prove the contents of the approval application under
Section 33(2)(b) and the petitioner-management has failed to discharge
this onus. Consequently, the order dated 21.03.2003 passed by the learned
Tribunal does not require any interference.
4. Para 11 of the approval application moved on behalf of the
petitioner-management is reproduced hereinunder:
"11. That Management has issued Removal Order dated
30.08.1993 and has also remitted one month wages by
M.O. No. 4372 & 4373 dated 30.08.2013 as required u/s
33(2)(b) of the I.D. Act. simultaneously."
The relevant portion of the affidavit dated 03.12.2002 filed by Sh.
G.K. Sabharwal, on behalf of the petitioner-management, is reproduced
hereinunder:
"The reply of the show cause notice was not satisfactory
so the punishment of removal was confirmed. Along with
the removal order, one month‟s salary of Rs. 2364/- was
sent to the workman and the same has been received by
the workman. The copies of the show cause notice,
removal order, salary slip and the postal receipts are
already on the file as Ex. AW-2/2 to 6."
(Emphasis Supplied)
The aforesaid affidavit was taken on record vide order dated
04.12.2002, which is reproduced as under:
"The applicant has filed affidavit of Smt. Manju Sharma
and Sh. G.K. Sabharwal, copy supplied to opposite side.
Adj. to 24.01.03 for re-examination of witnesses."
5. The aforesaid order dated 04.12.2002 speaks about the filing of the
affidavit by Sh. G.K. Sabharwal and contents of the same are stated
above. The impugned order dated 21.03.2003 is contrary to para 11 of the
approval application, affidavit of Sh. G.K Sabharwal supported with
material documents i.e., M.O. no. 4372 and 4373, alleging therein that
one month's wages have already been paid, to the respondent-workman.
6. Consequently, the order dated 07.02.2003 and the impugned order
dated 21.03.2003, too, is set aside. The matter is remanded back to the
learned Tribunal for passing appropriate order after giving opportunities
to both the parties of being heard and opportunity to lead evidence.
7. The parties are directed to appear before the learned Tribunal on
19.10.2015. It is hereby also made clear that nothing contained
hereinabove is an expression of opinion on the merits of the case. The
lower court record be sent back with a copy of this judgment. No order as
to costs.
I.S.MEHTA, J
SEPTEMBER 02, 2015
j
