Delhi High Court

Delhi Transport Corporation vs Rajinder Singh on 18 September, 2015

Author: I. S. Mehta

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

%       W.P.(C) No. 2164/2004


       DELHI TRANSPORT CORPORATION                  ..... Petitioner
                    Through: Mr. Uday N. Tiwari and Mr. Sunil Ojha,
                             Advocates.

                               versus

        RAJINDER SINGH                                               .....Respondent
                     Through:                Mr. Mahesh Srivastava, with Mr.
                                             Vaibhav Manu Srivastava, Advocates.


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

                                        JUDGMENT

I. S. MEHTA, J.

1. The present petitioner, i.e., Delhi Transport Corporation

(hereinafter referred to as the „petitioner-management‟) has preferred the

present Writ Petition under Articles 226 and 227 of the Constitution of

India assailing the validity of order dated 15.09.2003 passed by the

Presiding Officer, Industrial Tribunal No. III, Delhi (hereinafter referred

to as the „learned Tribunal/Industrial Adjudicator‟), in O.P. No. 16/06,

wherein the learned Tribunal dismissed the approval-application made by

the present petitioner under Section 33(2)(b) of the Industrial Disputes

Act, 1947.

2. The brief facts stated are that as per the allegations of the

petitioner-management, the respondent-workman, i.e., Shri Rajinder

Singh, on 08.03.1988, was found misconducting himself, while on duty as

conductor in Bus No. 1050 at Route No. 082, by non-issuance of tickets,

keeping with him used and unauthorised tickets, and offering illegal

gratification of Rs. 10/- each to the checking officials.

On the basis of the report of Shri Raj Singh and Shri Kanhiya Lal,

TIs, the respondent-workman was suspended from duty w.e.f. 12.04.1988

and subsequently, he was served with the charge-sheet No.

SPD/AI(T)/CS-851/88 dated 04.05.1988. During the enquiry, the

respondent-workman claimed to be innocent, and as per the allegation of

the petitioner-management, the statements of Shri Puran Mal, ATI,

T.No.17320, Shri Mam Chand, T.I., T.No.19267, Shri Inder Singh, ATI,

T.No.11046, Shri Swaroop Singh, T.I., T.No.3779, Shri Banshi Lal, ATI,

T.No.20160, Shri Krishnan Kumar, ATI, T.No.18351, Shri R.K. Sharma,

AVI, Shri Raj Singh, T.I., T.No. 3818 and Shri Kanhiya Lal, T.I., T.No.

3805, were recorded.

The enquiry officer, after going through the aforesaid statement,

reached the conclusion that charges levelled against the respondent-

workman were proved and subsequently, the same was forwarded to the

Depot Manager, Shadipur Depot for imposing proper punishment. The

Depot Manager, Shadipur Depot by virtue of powers delegated to him,

issued a show-cause notice No. SPD/AI(T)/88/2643, dated 04.05.1989,

directing the respondent-workman to show cause as to why he should not

be removed from services of the petitioner-management. The respondent-

workman filed his reply vide letter dated 17.05.1989 and the Depot

Manager, Shadipur after going through the reply and defence taken by the

respondent-workman passed the removal order dated 15.06.1989 and also

remitted one month's wages by money order, i.e., M.O. No. 2760 & 2761

dated 15.06.1989 as required under Section 33(2)(b) of the Industrial

Disputes Act, 1947. An approval application under Section 33(2)(b) of

the Industrial Disputes Act, 1947 was also filed before the learned

Tribunal for approval of the action taken, i.e., removal of the respondent-

workman from services of the petitioner-management.

The learned Tribunal vide order dated 15.09.2003 rejected the

approval application and the order of removal of the respondent-workman

was set-aside.

Aggrieved by the aforesaid order dated 15.09.2003, the petitioner,

i.e., Delhi Transport Corporation, has preferred the present Writ Petition.

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

management has pointed out that the learned Tribunal went wrong and

acted in haste while closing the evidence on behalf of the petitioner-

management. The learned counsel has further pointed out that sufficient

opportunity was not given to the petitioner-management to lead its

evidence and the same was closed on the next date of hearing which is

ipso facto sufficient to remand back the matter to the learned Tribunal to

record the evidence of the petitioner and give proper finding after

recording the evidence.

The learned counsel for the petitioner has further pointed out that

the respondent-workman, in this case, is not entitled to any back-wages,

as he has failed to discharge the burden regarding his unemployment after

his removal from service. The learned counsel in support of his

contentions has relied on the following judgments:

a) Managing Director, Balasaheb Desai Sahakari S.K. Ltd. vs. Kashinath Ganapati Kambale, (2009) 2 SCC 288.

b) Kendriya Vidyalaya Sangathan and Another vs. S.B. Sharma, (2005) 2 SCC 363.

c) United Bank of India vs. Sidhartha Chakraborty, (2007) 7 SCC 670.

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

respondent-workman has opposed the contentions of the learned counsel

for the petitioner-management and submitted that no misconduct is

proved on record and the onus of proving misconduct lies on the

petitioner-management. Therefore, the workman is deemed to be in the

employment of petitioner-management and consequently, he is entitled to

full back-wages.

4. India, being a welfare state, the legislature created a mechanism to

promote a better relationship between the workmen and management to

promote industrial peace and harmony to achieve higher productivity

through the enactment of the Industrial Disputes Act, 1947. The anxiety

of the legislature was to give protection to the workman against

victimisation or unfair labour practices with the preservation of

employer's bonafide right to maintain discipline and efficiency in the

industry. Section 33(2)(b) of the aforesaid Act puts the condition on the

management to get their action against the workman approved by the

Industrial Adjudicator to avoid unnecessary dispute or multiplicity of

litigation between the parties in presence of the already pending dispute

between the parties before the Industrial Adjudicator.

5. In the instant case, the allegation of petitioner-management against

the workman is that the respondent-workman, i.e., Shri Rajinder Singh

was found misconducting himself, while on duty as conductor in Bus No.

1050 at Route No. 082, by non-issuance of tickets, keeping with him used

and unauthorised tickets, and offering illegal gratification of Rs. 10/- each

to the checking officials.

The report to this effect was prepared by Shri Raj Singh and Shri

Kanhiya Lal, and the respondent-workman was put under suspension and

later he was removed from the services of the petitioner-management on

15.06.1989 and the petitioner-management filed application of its action

for approval under section 33(2)(b) of the Industrial Disputes Act, 1947

before the Industrial Adjudicator as a dispute was already pending

between the workman and the petitioner-management. After receiving the

notice, respondent-workman filed his reply and the preliminary issue, i.e.,

'whether the applicant held a legal and valid enquiry against the

respondent according to the principles of natural justice?‟ was framed on

23.11.1989.

On 24.05.1990, the petitioner-management's witness's statement

was not recorded and case was adjourned to 07.06.1990, on which date

the petitioner-management was given opportunity to lead its evidence

against the workman and thereafter, the matter was adjourned to

08.10.1990, 04.02.1991, 03.07.1991, 22.01.1992, 25.09.1992, and at last,

the Industrial Adjudicator imposed cost on the petitioner-management on

09.03.1993 and the matter was adjourned to 14.07.1993, and then to

22.11.1993 on which date, cost of Rs. 100/- was paid to the authorised

representative of the respondent-workman but the petitioner-management

again could not examine the witness on their behalf as their authorised

representative was not present and the matter was adjourned to

11.03.1994 and thereafter to 13.02.1995, 25.07.1995, 13.02.1996,

11.07.1996, 12.08.1996, 23.09.1996, 30.10.1996, 05.12.1996,

13.12.1996, 10.01.1997, 27.01.1997, 06.03.1997, 02.01.1998,

15.04.1998, 10.07.1998, 21.10.1998, 07.01.1999, 16.03.1999,

19.08.1999, 11.02.2000, 12.07.2000, 26.07.2000, 02.11.2000,

01.02.2001, 16.04.2001, 27.08.2001, 15.02.2002, and 05.07.2002, on

which date cost of Rs. 500/- was paid by the management but no witness

on behalf of management was present and the Industrial Adjudicator was

left with no option but to close the evidence on the issue of enquiry and

Industrial Adjudicator decided the preliminary issue in favour of the

respondent-workman and against the management for want of evidence.

6. Here, with great anguish, it is pointed out that the petitioner-

management, which was seeking approval of the action taken in the year

1989, i.e., removal from service of the respondent-workman, failed to

examine witnesses and lead evidence, and the Industrial Adjudicator was

left with no option but to close the evidence after a period of 13 years.

The aforesaid order dated 05.07.2002 of closing down the evidence and

deciding the issue of enquiry in favour of the respondent-workman and

against the management has not been challenged by the petitioner-

management. Rather, the petitioner-management opted for contesting the

matter on merits on 05.07.2002 itself, and the matter was listed for

evidence on merits for 22.11.2002. On 22.11.2002, one Shri Hardwari

Lal, authorised representative for the management, and the workman

were present. No management-witnesses were present and Shri Hardwari

Lal, authorised representative of petitioner pleaded no instruction on

behalf of management further leaving the Industrial Adjudicator with no

other option except to close the petitioner-management's evidence on

merits and the case was fixed for respondent-workman's evidence for

09.04.2003. The said order dated 22.11.2002 is reproduced as under:

"22.11.02 Pr- Sh. Hardwari Lal, Ld. AR Workman, Sh. Rajinder Singh in person

No MW is present. Ld. AR submits that none has responded from the department. There is no instruction to him. The management has already availed several opportunities but failed to lead ME despite imposing cost. ME is closed on merits. Now put up for evidence of workman and arguments on 09.11.03."

On 09.04.2003, the workman had examined himself as WW.1 and

none appeared on behalf of the petitioner-management. The petitioner-

management did not challenge the order of the Industrial Adjudicator

dated 22.11.2002, on which date, the management-evidence on merits

was closed. Rather, they further participated in further proceedings on

08.09.2003 and filed the written arguments and finally, the learned

Industrial Adjudicator/Industrial Tribunal No. - III, passed the impugned

order dated 15.09.2003.

7. The contention of the learned counsel for the petitioner-

management that sufficient opportunity was not given to the management

to lead evidence on merits is not convincing and the plea loses its

significance in presence of the opportunities given to the petitioner-

management on several dates. Moreover, nothing is stated on behalf of

the petitioner-management as to why the petitioner-management has not

challenged the order of the Industrial Adjudicator dated 05.07.2002 and

22.11.2002 which have now attained finality qua against the petitioner-

management. No steps to summon the witnesses were taken by the

petitioner-management. If the plea of the petitioner-management is

accepted, there is every possibility of the petitioner-management, venture

the procedural adventurism against the respondent-workman, particularly

in the instant case, where the Industrial Adjudicator himself was left with

no option except to close the evidence of the petitioner-management on

two occasions and thereafter, passed the impugned order.

8. The contention of the learned counsel for the petitioner-

management that the respondent-workman is not entitled to back-wages

as he has not specifically pleaded that he was not gainfully employed

elsewhere after his removal from service in view of the aforementioned

judgments i.e., Managing Director, Balasaheb Desai Sahakari S.K. Ltd.

vs. Kashinath Ganapati Kambale, (2009) 2 SCC 288, Kendriya

Vidyalaya Sangathan and Another vs. S.B. Sharma, (2005) 2 SCC 363,

and United Bank of India vs. Sidhartha Chakraborty, (2007) 7 SCC

670, is not convincing.

In the instant case, the petitioner-management was under a legal

obligation to take the mandatory approval under Section 33(2)(b) of the

Industrial Disputes Act, 1947 from the Industrial Adjudicator. If the order

of removal of workman from the services is not approved by the

Industrial Adjudicator, the position of the workman remains to be that of

an unblemished workman entitling him to all the benefits to which a

workman is entitled under the law. It is evident from petition under

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

approval application is moved on behalf of the management and not on

behalf of respondent-workman. Therefore, the onus always lies on the

petitioner-management to obtain approval of its action taken and if the

same fails, the status of the workman remains to be a workman, same as

under section 2(s) of the Industrial Disputes Act, 1947. It has been so

held by the Hon'ble Supreme Court of India in the case titled as Jaipur

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

Ors., 2002 (2) SCC 244, which is reproduced as under:

"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) dismissing or discharging an employee brings an end of relationship of 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." (emphasis supplied)

9. The judgments relied upon by the petitioner-management, i.e.,

Managing Director, Balasaheb Desai Sahakari S.K. Ltd. (Supra) and

Kendriya Vidyalaya Sangathan (Supra) are not helpful to the petitioner-

management as the above-mentioned cases do not pertain to Section

33(2)(b) of the Industrial Disputes Act, 1947. So far as the other case

relied upon by the petitioner-management, i.e., United Bank of India

(Supra) is concerned, paragraph 10 of the aforesaid judgment shows that

the same was passed in peculiar circumstances, wherein the Apex Court

restricted the quantum of back-wages to Rs. 2 lakh, after taking into

account the peculiar facts of the case and the background in which the

disciplinary action was taken against the workman therein, and the

position in law as it stood at the relevant time when the order of dismissal

was passed.

In the instant case, the approval application on behalf of the

petitioner-management under Section 33(2)(b) of the Industrial Disputes

Act, 1947 has been rejected by the Industrial Adjudicator. The provisions

of Section 33(2)(b) of the aforesaid Act protects the interest of the

workman and it is a shield against victimisation and unfair labour

practices by the management during the pendency of a dispute. The status

of the respondent-workman remains to be that of a workman as defined

under Section 2(s) of said Act.

Therefore, this being the position of law, the workman-respondent

is entitled to all the consequential benefits including back-wages as given

to a workman under Section 2(s) of the said Act. Reliance is placed on the

judgment rendered by the Division Bench of this Court in the case titled

as Delhi Transport Corporation vs. Pradeep Kumar, LPA Nos. 278 and

284/2008, decided on 28.05.2008. Consequently, the respondent-

workman is entitled to all consequential benefits, to which he would have

been entitled, had the removal order not been passed against him. Hence,

once the approval application filed by the management is dismissed, the

concerned workman is deemed to be in service and this makes the

respondent-workman entitled to back-wages too and there is no need of a

separate or a specific order of the back-wages.