Delhi Transport Corporation vs Shri Ram Kumar
2016 Latest Caselaw 1073 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                                 Judgment delivered on: February 11, 2016


% 1. W.P.(C) No. 5845/2005

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


                                versus

        SHRI RAM KUMAR                                                  .....Respondents
                    Through:                      Mr. Y.S. Chauhan and Mr. Sachit Arora,
                                                  Advocates.

                                                  AND
       2. W.P.(C) No. 5912/2004

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

                                versus

        SHRI RAM KUMAR                                                  .....Respondents
                    Through:                      Mr. Y.S. Chauhan and Mr. Sachit Arora,
                                                  Advocates.
        CORAM:

       HON'BLE MR. JUSTICE I.S. MEHTA


                                         JUDGMENT

I. S. MEHTA, J.

1. Challenge in the present Writ petitions is to the impugned Award

and order passed in I. D. No. 688/96 and O.P. No. 301/94 respectively

arising from a single incident, i.e., allegation of misconduct qua against

the respondent-workman.

2. The brief facts stated are that the respondent-workman, i.e., Shri

Ram Kumar was in the employment of the petitioner-management, i.e.,

Delhi Transport Corporation as a conductor, B. No. 15879. On

10.05.1994, while the respondent-workman was on duty in bus No. DL 1P

9606 on route No. 094/B, the said bus was intercepted at Wazirpur Depot

by the checking officials of the petitioner-management, i.e., Shri Rajvir

Singh, T.I. (who was reporter of the case), Shri Braham Dutt, Shri Bheh

Ram and Shri Dhan Pal Singh (A.T.I.'s) and Shri G.K. Tyagi, Shri Ram

Krishan and Shri Mahavir Singh (conductors), and it was found that ten

passengers in two groups of five each who had been travelling from

Rohini Outer and I.S.B.T. to Railway Station were found without ticket

although the fare had already been collected by the respondent-workman

and the abovementioned conduct of the respondent-workman tantamount

to misconduct within the meaning of para 19 (b), (f) and (m) of the

standing orders governing the conduct of Delhi Transport Corporation

employees.

3. On the basis of the report of the reporting officer, a charge-sheet

was issued to the respondent-workman, an inquiry was conducted and the

respondent-workman was found guilty of the alleged misconduct and

thereafter he was terminated w.e.f. 27.09.1994.

4. Since an Industrial Dispute was pending before the learned

Industrial Adjudicator, it was sine qua non to move an approval

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

Consequently, an application under section 33(2)(b) of the said Act was

moved by the petitioner-management and remitted one month wages vide

money orders No. 2023 & 2024 dated 27.09.1994. The said dismissal

order was challenged by the respondent-workman.

5. During the pendency of the abovementioned application, the

respondent-workman preferred to raise an Industrial Dispute under

Section 10 of the Industrial Disputes Act, 1947, i.e., I. D. No.688/96 and

the appropriate government referred the same to learned Industrial

Adjudicator and the learned Industrial Adjudicator passed an Award

dated 10.03.2004.

6. In the petition under Section 33(2)(b) of the Industrial Disputes

Act, 1947, after completing the pleadings, both the parties have led their

respective evidence on the following issues:

                      "(1)     Whether        the   respondent   has   committed     the

                      misconduct?OPA

(2) Whether the applicant has remitted one month's salary as

required U/s 33(2)(b) of I.D. Act?OPA

(3) Relief."

7. The petitioner-management has examined AW1, i.e., Shri Lakshmi

Narain, AW2, i.e., Shri Dhan Pal Singh and AW3, i.e., Shri Tarun Kumar

Verma, whereas the respondent-workman examined himself as RW1.

8. In Industrial Dispute No. 688/96, after completing the pleadings,

only the preliminary issue, i.e, "Whether the domestic enquiry was

conducted according to principal of natural justice and is fair, valid &

proper." was framed on 19.12.1997 and the parties were given

opportunity to lead the evidence on the preliminary issue only and the

respondent-workman has led its evidence as WW1 and the petitioner-

management has not led any evidence.

9. On the perusal of the record pertaining to the petition under Section

33(2)(b) of the Industrial Disputes Act, 1947, which shows that the

learned Industrial Adjudicator has rejected the approval application of the

petitioner-management vide order dated 31.07.2003, whereas the learned

Industrial Adjudicator passed an impugned Award dated 10.03.2004

without framing the main issues arising out of the pleadings or giving

opportunity to the parties on the main issue, i.e., terms of reference, to

which the learned Industrial Adjudicator is expected to

reply/communicate the answer to the concerned government on the terms

of reference.

10. The learned counsel for the petitioner-management in I.D. No.

688/96 has drawn this Court's attention that the terms of reference were

sent to the learned Industrial Adjudicator "Whether the removal from

services of Sh. Ram Kumar is illegal and/or unjustified and if so, to what

relief is he entitled and what directions are necessary in this respect?"

and the learned Industrial Adjudicator did not frame the issue pertaining

to the terms of reference and without leading the evidence on the terms of

reference had passed the impugned Award dated 10.03.2004, which is

illegal in itself and liable to be set aside.

11. The learned counsel for the petitioner-management has further

submitted that without following the due/reasonable opportunity to lead

the evidence, the learned Industrial Adjudicator in haste has passed the

impugned Award against the petitioner-management which is contrary to

the facts on the record and is liable to be set aside.

12. The learned counsel on behalf of the petitioner-management has

further submitted that the conclusion drawn in the petition of the

petitioner-management in O.P. No. 301/94 is against the facts and in law

as the learned Industrial Adjudicator has not given any reason for

ignoring the statement of AW1, i.e., Shri Laxmi Narain (one of the

checking officials), and the existence of the document on record, i.e.,

challan No. 134412 dated 10.05.1994, on which the signature of the

respondent-workman was obtained at the place where he was

misconducting himself while on duty. The counsel for the petitioner-

management has placed reliance upon the judgments in the cases of State

of Haryana vs. Rattan Singh, (1977) 2 SCC 491, North-West Karnataka

road Transport Corporation vs. H. H. Pujar, (2008) 12 SCC 698 and

Delhi Transport Corporation vs. Shri Gian Chand, 153 (2008) DLT

360.

13. On the other hand, the learned counsel for the respondent-workman

has vehemently opposed the contentions advanced by the counsel for the

petitioner-management and submitted that the learned Industrial

Adjudicator has rightly passed the impugned Award dated 10.03.2004 in

favour of the respondent-workman, as the petitioner-management failed

to prove the alleged misconduct which was to be proved by the petitioner-

management. Therefore, once the misconduct is not proved by the

petitioner-management, in law the service of the respondent-workman

cannot be terminated. Consequently, both the impugned Award and the

impugned order passed by the learned Industrial Adjudicator are as per

law and submitted that both the Writ Petitions, i.e., W.P.(C) No.

5845/2005 and W.P.(C) No. 5912/2004 are liable to be dismissed.

14. Instant is the case where allegation of misconduct qua against the

respondent-workman is made during the existence of pending industrial

dispute, i.e., I.D. No. 17/1988 between the petitioner-management and the

union of workers, i.e., the employees of petitioner-management, wherein,

the petitioner-management was under legal obligation to approve its act

of dismissal qua against the respondent-workman, i.e., under Section

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

15. Consequently, the petitioner-management moved an approval

application under Section 33(2)(b) of the said Act dated 27.09.1994.

However, the respondent-workman, i.e., Shri Ram Kumar, himself raised

an Industrial Dispute, i.e., I.D. No. 688/96 between the petitioner-

management and the respondent-workman. The said Industrial Dispute

was referred by the competent government to the learned Industrial

Adjudicator vide reference No. F. 24(3613)/96-Lab./41878-82 dated

30.08.1996 to which the learned Industrial Adjudicator was to

reply/communicate its answer through an Award.

16. The object of incorporating Section 33(2)(b) of Industrial Disputes

Act,1947 is to maintain the peace during the existence of industrial

dispute between the workman and its management/institution and to

avoid the victimisation or unfair labour practice qua against the workman

during the relevant period.

17. Whereas Section 10 of Industrial Disputes Act, 1947 talks about

reference. The reference is, i.e., issue which is to be determined by

Industrial Adjudicator. The determination is of the workman's right qua

against the management and once the same has been determined, its reply

is in the form of an Award. Therefore, the reference under Section 10 of

Industrial Disputes Act, 1947 is much more wider than the approval

application under Section 33(2)(b) of the said Act where victimisation of

the workman is the core issue of the dispute in pendency of an Industrial

Dispute between the workman and its management.

18. It is apparent from the available records of the I.D. No. 688/96 that

the reference, i.e., "Whether the removal from services of Sh. Ram Kumar

is illegal and/or unjustified and if so, to what relief is he entitled and what

directions are necessary in this respect?" was sent to the learned

Industrial Adjudicator vide reference No. F. 24(3613)/96-Lab./41878-82

dated 30.08.1996.

19. The learned Industrial Adjudicator after receiving the said

reference proceeded by adopting the procedure for determination of the

said reference by taking the claim petition and reply thereof from the

petitioner-management and further rejoinder on behalf of the respondent-

workman too was taken on record and subsequently preliminary issue,

i.e., "Whether the domestic enquiry was conducted according to principal

of natural justice and is fair, valid & proper." was framed on 19.12.1997

and never bothered to frame the issue pertaining to the terms of reference.

20. The dispute in hand of the aforesaid Industrial dispute was

"Whether the removal from services of Sh. Ram Kumar is illegal and/or

unjustified and if so, to what relief is he entitled and what directions are

necessary in this respect?" and learned Industrial Adjudicator was to

answer to this term of reference after giving fair opportunities to both the

parties to lead the evidence and place on record the documents and

thereafter to determine whether the removal was justified or unjustified.

21. However, in the instant case, the learned Industrial Adjudicator,

without framing the issue on terms of reference and giving opportunuity

to the parties on respective issue, decided the matter without looking into

the file pertaining to the O.P. No. 301/94 by placing reliance on

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

and Ors., AIR 2002 SC 643.

22. The Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram

Gopal Sharma and Ors.(Supra) case is based on Section 33(2)(b) of the

Industrial Disputes Act, 1947 which is in the narrow campus in presence

of present Industrial Dispute, i.e., I.D. No.688/96 in which the reference

under Section 10 was made to the learned Industrial Adjudicator to

determine "Whether the removal from services of Sh. Ram Kumar is

illegal and/or unjustified and if so, to what relief is he entitled and what

directions are necessary in this respect?" and it was never the subject

matter to frame the preliminary issue, i.e., "Whether the domestic enquiry

was conducted according to principal of natural justice and is fair, valid

& proper." by bypassing the terms of reference of the said Industrial

Dispute. In the petition under Section 33(2)(b) of the said Act, ordinarily

a prima facie view is to be taken, whereas under Section 10 of Industrial

Disputes Act, 1947 an appropriate course for adjudication for

determination of the rights of the workman is to be made.

23. Where the approval application under Section 33(2)(b) and a

reference under Section 10 of the Industrial Disputes Act, 1947 is made to

learned Industrial Adjudicator, the learned Industrial Adjudicator is still

required to reply/communicate the finding on the terms of reference

"Whether the removal from services of Sh. Ram Kumar is illegal and/or

unjustified and if so, to what relief is he entitled and what directions are

necessary in this respect?". The reliance is placed on Dharampal vs.

National Engg. Inds. Ltd., AIR 2002 SC 510, All India Women's

Confrence vs. Raj Karan & Ans., 2010-IV LLJ 467 (Del) and Hotel Taj

Palace vs. Shri Jagat Singh & Ors., MANU/DE/3589/2015.

24. The petitioner-management in O.P. No. 301/94 placed the material

documents on record and examined AW1, i.e., Shri Laxmi Narayan and

placed on record the document, i.e., Challan No. 134412 dated

10.05.1994, which is duly signed by respondent-workman himself and

was prepared at the spot while the respondent-workman was

misconducting on 10.05.1994 while on duty. The learned Industrial

Adjudicator did not give any reason for discarding the material evidence

on record. Consequently, the impugned order dated 31.07.2003 as well as

the impugned Award dated 10.03.2004 are set aside and both the files are

sent back to the learned Industrial Adjudicator to pass a fresh

order/Award after giving fair opportunities to both the parties in I.D. No.

688/96. It is further directed that both the I.D No. 688/96 and the O.P.

No. 301/94 be decided by the same Court as the allegation of the

misconduct is arising from the single incident, i.e., dated 10.05.1994. The

present Writ Petitions are disposed off accordingly.

25. Parties are directed to appear before the learned Industrial

Adjudicator on 28.03.2016.

One copy of this judgment be placed on the file of W.P.(C) No.

5912/2004. The Lower Court record be sent back with a copy of this

Judgment. No order as to costs.

I.S. MEHTA, J

FEBURARY 11, 2016 j