[Cites 20, Cited by 0]
Delhi High Court
The Management Of Sh. Moolchand ... vs Ms. Thresiamma George on 28 November, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 17.11.2025
Judgment pronounced on: 28.11.2025
+ W.P.(C) 13418/2018, CM APPL. 52259/2018, CM APPL.
5838- 39/2020
THE MANAGEMENT OF SH. MOOLCHAND KHAIRATI RAM
HOSPITAL AND AYURVEDIC RESEARCH INSTITUTE
.....Petitioner
Through: Mr. Gaurav Bahl and Ms. Anshu,
Advocates.
versus
MS. THRESIAMMA GEORGE .....Respondent
Through: Mr. N.D. Pancholi and Mr. Deepak
Mayur, Advocates.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. The present writ petition under Articles 226 and 227 of the
Constitution of India has been preferred by the petitioner/hospital,
assailing the Award dated 10.04.2018 passed by the learned
Presiding Officer, Labour Court-V, Dwarka Courts, Delhi in ID
No. 5233/2016, whereby the respondent/ nurse, was held entitled
to full back wages, continuity of service and all consequential
benefits from the date of her termination till the date of her
superannuation.
2. The brief facts of the case are as follows-. The
respondent/nurse was appointed as a staff nurse with the
petitioner/hospital w.e.f. 15.04.1987. It is the respondent/nurse's
case that during the course of her employment, she was a member
of the workers' union and had actively supported the demand for
implementation of the recommendations of the 5thCentral Pay
Commission in respect of the employees of the petitioner/hospital.
It is alleged that the petitioner/hospital attempted to pressurize her
to resign from the union and to withdraw her support from the
pending industrial dispute (ID No. 86/1998), but on her refusal to
succumb to such pressure tactics, she was dismissed from service
vide order dated 14.09.1998, without issuance of any chargesheet
and without holding any domestic enquiry.
2.1 At the relevant time, an industrial dispute (ID No.
86/1998) relating to the pay scales and service conditions of
employees of the petitioner/hospital was pending adjudication
before the Industrial Tribunal. During pendency of the said
proceedings, the petitioner/hospital moved an application under
Section 33(2)(b) of the Industrial Disputes Act, 1947 (the ID Act),
seeking approval of the dismissal of the respondent/nurse. The said
application came to be decided by the Industrial Tribunal vide
order dated 22.12.2004 in OP No. 55/1999, whereby the approval
sought by the petitioner/hospital was accorded upon consideration
of whether the procedural requirements of Section 33(2)(b) of the
ID Act were satisfied.
2.2 Pursuant to the grant of approval under Section 33(2)(b)
of the ID Act, the respondent/nurse on 26.11.2005raised an
industrial dispute (ID No. 5233/2016) challenging her dismissal by
filing a direct claim petition before the Labour Court under Section
10 of the ID Act.The petitioner/hospital contested the proceedings
and, inter-alia, raised a preliminary objection that the order dated
22.12.2004 passed in OP No. 55/1999 operated as res judicata and
that the claim petition was barred. The petitioner/hospital further
contended that the hospital, being a charitable institution, was not
an 'industry' within the meaning of Section 2(j) of the ID Act, and
that the respondent/nurse, being a staff nurse allegedly discharging
supervisory duties, did not fall within the definition of 'workman'
under Section 2(s) of the ID Act.
2.3 In view of the plea of res judicata, the Labour Court
framed the following issue-- "Whether the order dated 22.12.2004
in OP No. 55/99 operates as res judicata?"--and directed that the
same be treated as a preliminary issue. Upon hearing both sides,
the Labour Court vide a detailed order dated 01.06.2015 rejected
the petitioner's/hospital's objection, holding that the approval
under Section 33(2)(b) does not constitute adjudication on merits
and cannot bar the subsequent industrial dispute challenging the
dismissal.
2.4 Thereafter, evidence was led by both sides. The
respondent/nurse examined herself as WW-1 and Exhibits WW-1
to WW5 were marked on her side. On behalf of the
petitioner/hospital MW-1 was examined and Exhibits MW-1 to
MW-19 were marked.
2.5 Upon evaluating the pleadings, evidence and after
hearing both sides, the Labour Court held that the
petitioner/hospital failed to establish that the hospital was not an
'industry' or that the respondent/nurse discharged supervisory
functions; that no domestic enquiry was conducted against her
despite enquiries having been held against similarly placed co-
workers, rendering the plea of impracticability unsustainable; and
that proceedings under Section 33(2)(b) of the ID Act could
neither substitute a domestic enquiry nor prove misconduct--
consequently declaring the dismissal illegal and violative of
natural justice, and, the respondent/nurse having already
superannuated, directing full back wages, continuity of service and
all consequential benefits from the date of termination till
superannuation.
3. Aggrieved by the said Award dated 10.04.2018, the
petitioner/hospital has approached this Court invoking its writ
jurisdiction.
4. The learned counsel for the petitioner/hospital assails the
impugned Award primarily on the ground that the Labour Court
failed to appreciate the legal effect of the approval granted by the
Industrial Tribunal in OP No.55/1999 under Section 33(2)(b) of
the ID Act. The learned counsel would furthersubmit that the
Industrial Tribunal, after recording detailed evidence, returned
clear findings of misconduct against the respondent/nurse and held
that the dismissal was justified. Reliance is placed on the dictum
of DTC v. Surender Pal, 142 (2007) DLT 595 (Del) wherein it
was held that if the employer establishes misconduct in the course
of Section 33(2)(b) proceedings under the ID Act, such findings
bind the workman in subsequent adjudication. It is urged that the
Labour Court erred in re-opening issues conclusively decided in
the approval proceedings.
4.1 The learned counsel for the petitioner/hospital would
further place reliance on the dictum in Jaipur Zila Sahakari
Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma, (2002) SCC
244, to contend that once an approval is granted, the dismissal
relates back to the original date, and the workman cannot reagitate
the correctness of the charges. TheLabour Court wrongly diluted
the scope of res judicata and failed to appreciate that the Industrial
Tribunal had undertaken a "full-fledged enquiry", rendering its
findings conclusive.
4.2 The learned counsel for thepetitioner/hospital would then
emphasise that the Labour Court failed to consider the dictum in
DTC v. Delhi Administration, 2007 (96) DRJ 48 (Del), which
reiterates that disciplinary decisions of the management, once
approved, ought not to be interfered with unless perversity is
shown. It is contended that the respondent/nurse did not plead or
establish any perversity.
4.3 It is next contended that, in the peculiar and volatile
circumstances prevailing in the petitioner/hospital at the time--
when the respondent/nurse and others staged a violent
demonstration and gherao, holding a domestic enquiry was
impracticable. It was submitted that the Industrial Tribunal had
accepted this justification in the Section 33(2)(b) order, and
therefore the Labour Court erred in relying on the dictum in Jai
Bhagwan v. Ambala Central Bank, (1983) 4 SCC 611, wherein
the Apex Court held that dismissal without enquiry violates natural
justice. According to the petitioner/hospital the ratio in Jai
Bhagwan (Supra) does not apply where an enquiry is impossible
due to violence or breakdown of discipline.
4.4 The petitioner/hospital further asserts that the hospital is
run by a charitable trust and thus does not fall within the definition
of "industry" under Section 2(j). It was submitted that charitable
bodies rendering medical services are not commercial
establishments and therefore outside the purview of the ID Act.
The Labour Court is stated to have misapplied the seven-judge
judgment in Bangalore Water Supply v. A. Rajappa, 1), Lab IC
467 (SC),wherein it was held that even charitable organisations
could constitute an "industry". The petitioner/hospital contends
that Rajappa (Supra) must be read contextually and not
automatically applied to all trusts.
4.5 It was also urged that the respondent/nurse was
functioning as a supervisory in-charge over nurses and Class-IV
staff, and therefore excluded from the definition of "workman"
under Section 2(s) of the ID Act. Reliance is placed on the general
principle that persons exercising supervisory control and
performing administrative duties are not workmen. The
petitioner/hospital argues that the Labour Court misapplied the
ratio in Sudhir Kumar v. M/s Ferro Alloys, 1992 Lab IC 657
(Bom), wherein it was held that a person is not in a supervisory
capacity unless empowered to sanction leave or take disciplinary
action.
4.6 Finally, the petitioner/hospital would also contend that
the award of full back wages is contrary to precedents. Reliance is
placed on the dictum in Rajasthan State Road Transport
Corporation v. Phool Chand, Civil Appeal No.1736/2010 (SC),
which holds that back wages are not automatic even where
reinstatement is ordered. It is argued that the Labour Court ignored
the principle that the workman must prove non-employment, and
that the Award imposes an unjustified financial burden on a
charitable institution.
5. Per contra, the learned counsel for the
respondent/nurse/workwoman submitted that the central plank of
the petitioner's/hospital's argument--namely that the Section
33(2)(b) approval operates as res judicata--is wholly
misconceived. It is submitted that the Labour Court's order dated
01.06.2015 (Annexure R-1) has made it clear that the approval
proceedings do not bar a subsequent industrial dispute. This
finding attained finality as the petitioner/hospital did not challenge
it. Counsel relies on the authoritative decisions cited by the Labour
Court, especially Martin Burn Ltd. v. R.B. Banerjee, AIR 1958
SC 78, and Lalla Ram v. DCM Chemical Works Ltd., AIR
1978 SC 1004, which hold that Section 33(2)(b) the ID Act is
confined to examining procedural compliance--payment of one
month's wages and bona fides--and does not adjudicate guilt.
5.1 The learned counsel would further emphasise that the
Labour Court relied on an extensive line of Apex Court judgments,
including Atherton West & Co. v. Suti Mill Mazdoor Union,
1953 II LLJ 321 (SC), Automobile Products of India Ltd. v.
Rukmaji Bala, 1955 I LLJ 346 (SC), Lakshmi Devi Sugar Mills
v. Ram Sarup, 1957 I LLJ 17 (SC), and G. McKenzie & Co. v.
Its Workmen, 1959 I LLJ 285 (SC), all of which hold that the
findings in Section 33(2)(b) approval proceedings do not constitute
a decision on merits and therefore cannot operate as res judicata.
5.2 The learned counsel for the respondent/nurse also relies
upon Surender Pal v. Management of DTC, 152 (2008) DLT
671 (DB) (Del), where the Division Bench expressly
overruled DTC (supra). The Division Bench held that an approval
under Section 33(2)(b) the ID Act"is not an adjudication of
misconduct" and therefore "cannot foreclose a full-fledged
industrial dispute under Section 10."
5.3 As to the absence of a domestic enquiry, the learned
counsel for the respondent/nurse invokes Jai Bhagwan v. Ambala
Central Bank, (1983) 4 SCC 611, where the Apex Court held that
dismissal without chargesheet or enquiry is per se violative of
natural justice, unless impossibility to hold an enquiry is proved--
which the petitioner/hospital failed to do as MW-1 admitted during
cross-examination that enquiries were conducted against two co-
workers for the same incident, demolishing the plea of
"impracticality."
5.4 On the "industry" issue, the leaned counsel would submit
that the Labour Court rightly applied the seven-judge ruling
in Rajappa (supra), which held that even charitable institutions
constitute industries if they organise systematic activity employing
workmen. No contrary evidence was led by the petitioner/hospital.
On the 'workman' issue, the leaned counsel would rely on Sudhir
Kumar v. M/s Ferro Alloys, 1992 Lab IC 657 (Bom), wherein it
was held that a person is not in a supervisoryposition unless
vested with real managerial powers such as sanctioning leave or
imposing discipline. The petitioner/hospital produced no such
evidence.
5.5 Regarding back wages, the respondent/nurse argued that
she deposed to her unemployment, and the petitioner/hospital
led no rebuttal evidence. Reliance is placed on the dictum in DTC
v. Ram Kumar, 1982 II LLJ 191 (Del DB), which holds that
once termination is found illegal, the normal rule is full back
wages unless the employer proves gainful employment. Counsel
further relies on Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya, (2013) 10 SCC 324, which holds that
full back wages are the natural consequence of illegal dismissal as
loss of livelihood causes serious hardship.
6. Heard both sides.
7. The foundational facts that bear upon the issue requiring
determination stand undisputed. The respondent/nurse was
dismissed without issuance of a chargesheet or the holding of any
domestic enquiry. The petitioner's/hospital's own witness, MW-1,
admitted that in respect of the very same incident, two co-
employees--were issued charge sheets and enquiries were duly
conducted, establishing that a domestic enquiry was not only
possible but undertaken in parallel circumstances. It is equally not
in dispute that the Labour Court, by its order dated 01.06.2015,
framed and decided the preliminary issue as to whether the
approval order dated 22.12.2004 in OP No.55/1999 operated as res
judicata, and held that such approval did not bar the industrial
dispute.
8. Turning to the petitioner's/hospital's reliance on the
dictum in Surender Pal (supra), the argument is that the findings
in Section 33(2)(b) proceedings bind the Labour Court in a
reference under Section 10 of the ID Act. However, this contention
completely overlooks that the said decision has been expressly
overruled by a Division Bench in Surender Pal (supra). The
Division Bench, after an exhaustive review of the Apex Court
precedents, held that approval under Section 33(2)(b) is a limited
inquiry confined to procedural compliance and "is not an
adjudication of misconduct" and therefore "cannot foreclose the
Industrial Tribunal from examining the correctness of the
dismissal". The petitioner's/hospital's reliance on a judgment that
has lost all precedential value is therefore wholly misconceived.
9. The petitioner/hospital next invoked Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd.(supra) to contend that once
approval is granted, the dismissal "relates back" to the original
date and cannot be reopened. However, a careful reading of
JaipurZila SahakariBhoomi Vikas Bank Ltd.(supra) reveals
that the ratio deals with the consequence of approval or refusal, not
the scope of adjudication in a Section 33(2)(b) proceeding. The
Apex Court addressed whether an employer could treat a workman
as dismissed without approval; it did not hold that such approval
constitutes an adjudication on misconduct. Thus, the
petitioner's/hospital's reliance is misplaced. The case does not
support the proposition that approval under Section 33(2)(b) bars a
subsequent reference under Section 10.
10. The petitioner's/hospital's reliance on Delhi
Administration (supra) is similarly unavailing. That judgment
deals with the limited scope of writ interference once disciplinary
findings are recorded after a domestic enquiry. Here, however, no
domestic enquiry was held, and the petitioner/hospital did not
adduce any evidence to prove misconduct before the Labour Court.
The petitioner/hospital cannot rely on a principle applicable to
properly conducted departmental proceedings when it admittedly
conducted none against the respondent/nurse. The ratio in Delhi
Administration DTC v. Delhi (supra) therefore has no
application to the present facts.
11. Equally untenable is the petitioner's/hospital's reliance
on the plea of "impracticability" of conducting an enquiry, for
which Jai Bhagwan (supra) was sought to be distinguished. In Jai
Bhagwan (supra), the Apex Court held that dispensing with an
enquiry is impermissible unless impossibility is demonstrated, and
dismissal without chargesheet violates natural justice. The
petitioner's/hospital's attempt to distinguish Jai Bhagwan (supra)
fails in the light of MW-1's categorical admission that enquiries
were in fact conducted against two other employees involved in
the same incident. This admission destroys the foundation of the
plea of impracticability and brings the present case squarely within
the operative ratio of Jai Bhagwan (supra).
12. The petitioner/hospital sought to argue that the hospital
was not an "industry" and the respondent/nurse not a "workman",
relying on charitable status and supervisory elements. These
contentions were properly rejected by the Labour Court. The
seven-judge Bench decision in Bangalore Rajappa (supra),
binding on all subsequent benches, squarely holds that even
charitable institutions constitute an "industry" if they engage in
systematic activity employing workmen. The petitioner/hospital
has shown nothing to take this case outside the wide and
authoritative sweep of Rajappa(supra). On the "workman" issue,
the reliance on general principles of supervisory roles cannot
override the ratio in Sudhir Kumar (supra), which requires
evidence of genuine managerial powers such as the ability to
sanction leave or impose discipline--none of which the
petitioner/hospital proved. These issues, however, ultimately fade
into the background, because the only point that materially impacts
the outcome is res judicata.
13. The learned counsel for the respondent/nurse's reliance
on the Apex Court decisions in Martin Burn Ltd. (supra);
Atherton West & Co. (supra); Automobile Products of India
Ltd.(supra); Lakshmi Devi Sugar Mills(supra); G. McKenzie &
Co.(supra); and Lalla Ram (supra), lays down the controlling
position. These authorities, spanning more than five decades,
consistently hold that Section 33(2)(b) approval proceedings
examine only procedural aspects--payment of one month's wages,
absence of mala fides, and absence of victimisation--and
do not entail adjudication of misconduct. The Labour Court's
reasoning follows this line of decisions.
14. The respondent/nurse has also correctly placed reliance
on Management of DTC (supra), which overruled the very
judgment forming the linchpin of the petitioner's/hospital's
argument. The Division Bench, after examiningthe precedents on
the point, held that a reference under Section 10 of the ID Act is
not barred even where approval under Section 33(2)(b) of the ID
Act has been granted.
15. The attempt to rely on back-wages jurisprudence--such
as Rajasthan State Road Transport Corporation (supra) and
Ram Kumar (supra) does not survive beyond the threshold issue.
Once res judicata is found inapplicable and dismissal itself is held
to be illegal, the Labour Court's consequential relief is governed
by the principles in Deepali Gundu Surwase (supra), which
recognises that back wages ordinarily follow illegal termination
unless the employer disproves unemployment--something the
petitioner/hospital entirely failed to do. Yet, these aspects are
academic for present purposes because the writ turns solely on
whether the plea of res judicata is legally tenable.
16. Even independently of the plea of res judicata, the
challenge raised by the petitioner/hospital cannot be sustained on
merits. It stands admitted through MW-1 that no domestic enquiry
whatsoever was conducted against the respondent/nurse, while
enquiries were in fact held against other employees implicated in
the very same incident--thereby demonstrating that an enquiry
was fully feasible and that the plea of impracticability has no
factual foundation. The petitioner's/hospital's attempt to rely on
the material placed in the proceedings under Section 33(2)(b) of
the ID Act cannot cure this fundamental defect, for it is well-
settled that evidence in such proceedings, being confined to
procedural compliance, cannot substitute a regular departmental
enquiry. Once the petitioner/hospital failed to lead any evidence
before the Labour Court to establish misconduct, and in view of
the admitted procedural lapses, the Award cannot be said to suffer
from perversity, jurisdictional error or misapplication of law. Even
on an independent merits review, no ground for interference under
Articles 226 or 227 is disclosed.
17. In the light of the foregoing discussion, both on the legal
position governing Section 33(2)(b) approvals and the factual
matrix that stands admitted on record, the petitioner's/hospital's
principal contention that the approval order dated 22.12.2004
operates as res judicata cannot be sustained. When the matter is
viewed cumulatively--namely, the admitted absence of a domestic
enquiry, the petitioner's/hospital's own admission that enquiries
were conducted against similarly placed co-employees, the settled
principle that Section 33(2)(b) proceedings cannot substitute an
enquiry on merits, the Labour Court's factual findings based on
evidence, and the absence of any perversity or jurisdictional
infirmity--the writ petition discloses no ground warranting
interference under Articles 226 or 227 of the Constitution. The
impugned Award is consistent with binding precedent, supported
by evidence, and based on correct legal application. Interference
by this Court is therefore unwarranted.
18. For the reasons recorded hereinabove, the writ petition is
devoid of merit and is accordingly dismissed. There shall be no
order as to costs.
CHANDRASEKHARAN SUDHA
(JUDGE)
NOVEMBER 28, 2025
