*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18th April, 2011
+ W.P.(C) 10800/2005
% DELHI TRANSPORT CORPORATION ..... Petitioner
Through: Ms. Arati Mahajan Shedha, Adv.
Versus
SUDAN PAL ..... Respondents
Through: Mr. Lokesh Kumar, Advocate
AND
+ W.P.(C) 10938/2005
% DELHI TRANSPORT CORPORATION ..... Petitioner
Through: Ms. Arati Mahajan Shedha, Adv.
Versus
SUDAN PAL ..... Respondents
Through: Mr. Lokesh Kumar, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
W.P.(C) Nos.10800/2005 & 10938/2005 Page 1 of 21
RAJIV SAHAI ENDLAW, J.
1. W.P.(C) No.10800/2005 impugns the award dated 9 th July, 2004
of the Labour Court holding the petitioner DTC to have illegally
terminated the services of the respondent workman and directing the
petitioner DTC to reinstate the respondent workman with continuity of
service and full back wages and other consequential benefits. W.P.(C)
No.10938/2005 impugns the order dated 3 rd August, 2000 of the
Labour Court dismissing the application of the petitioner DTC under
Section 33(2)(b) of the Industrial Disputes Act, 1947 seeking approval
of its disciplinary action resulting in removal of the respondent
workman from service. The facts for the disciplinary action as well as
of the dispute raised before the Labour Court are the same.
2. The respondent workman was employed as a Conductor with the
petitioner DTC. The charge against him was that on 17th June, 1991 he
was on duty as a Conductor on route No.319; that the respondent
workman while on duty on the said route, after covering a distance of
14 Km., in collusion with the Driver of the bus, stopped the bus at
W.P.(C) Nos.10800/2005 & 10938/2005 Page 2 of 21
Gazipur Dairy Farm without any reason and made the passengers on
the said bus alight by representing to them that there was some fault
with the bus; that in fact there was no fault with the said bus and no
intimation of the fault, if any with the bus, as required to be given in
case of a fault, was given to the Control Room or to the Depot; that
upon the bus not reaching its destination, other staff of the DTC was
sent to locate the said bus but without any success.
3. The respondent workman was thus charged with putting the
passengers who were made to alight to inconvenience, tarnishing the
image of the DTC and causing loss to the DTC by not completing the
remaining trip of the bus. The departmental enquiry found the
respondent workman to be guilty and the Disciplinary Authority of the
petitioner DTC imposed the punishment of removal of the respondent
workman from employment. However, in view of the pendency then
of a general dispute of the DTC with its workmen, the application
aforesaid under Section 33(2)(b) of the I.D. Act seeking approval of
the action of removal of the respondent workman from employment
was filed.
W.P.(C) Nos.10800/2005 & 10938/2005 Page 3 of 21
4. The said application under Section 33(2)(b) was contested by the
respondent workman. The Labour Court framed a preliminary issue as
to the legality and validity of the departmental enquiry conducted
against the respondent workman and as to whether the same was
conducted in compliance with the principles of natural justice. The
Labour Court vide order dated 21 st February, 1998 held the Report of
the inquiry and finding of the Inquiry Officer to be perverse for the
reason of the Inquiry Officer who was examined as a witness before
the Labour Court having in his cross examination admitted that only
the Driver knows better regarding the defect in the bus and it was the
Driver who was supposed to lodge the report of the defect, if any, in
the bus; it was thus held that the respondent workman as Conductor
could not be said to have committed any misconduct since the duty to
inform about the defect in the bus was of the Driver.
5. The petitioner DTC opted to prove the misconduct before the
Labour Court and was granted an opportunity. The Labour Court
however vide order dated 3 rd August, 2000 impugned in W.P.(C)
W.P.(C) Nos.10800/2005 & 10938/2005 Page 4 of 21
No.10938/2005 held that the petitioner DTC had failed to prove the
misconduct for the reason of no report of the inspection of the bus
having been prepared and the Foreman of the petitioner DTC who
deposed to the said effect being not expected to remember after long
many years as to whether there was any defect in the bus or not.
6. It was also held that once the petitioner DTC admitted that it was
mainly the duty of the Driver to inform the Control Room of the Depot
about the defect in the bus, the respondent workman who was merely a
Conductor could not be charged with misconduct on that account. It
was yet further held that the collusion of respondent workman with the
Driver of the bus had not been established.
7. No challenge was made by the petitioner DTC to the order dated
3rd August, 2000 dismissing the application under Section 33(2)(b).
8. However, it appears that during the pendency of the approval
application aforesaid, in or about the year 1998, the respondent
workman also raised an industrial dispute with respect to his removal
and a reference under Section 10 of the I.D. Act came to be made as
W.P.(C) Nos.10800/2005 & 10938/2005 Page 5 of 21
under:
“Whether the removal of Shri Sudan Pal from the
service by the management is illegal and / or
unjustified and if so, to what relief is he entitled and
what directions are necessary in this respect?”
9. The said reference remained pending without much progress.
When the said reference proceedings were listed before the Labour
Court on 3rd March, 2004 for cross examination of the respondent
workman, the respondent workman produced the order dated 3 rd
August, 2000 (supra) dismissing the application under Section 33(2)(b).
The Labour Court in view of the dicta in Jaipur Zila Sahakari Bhoomi
Vikas Bank Ltd. Vs. Ram Gopal Sharma AIR 2002 SC 643 laying
down that upon dismissal of the application under Section 33(2)(b), the
workman becomes entitled to be reinstated even without any direction
in this regard, held that upon dismissal of the application under Section
33(2)(b) on 3rd August, 2000, the respondent workman was deemed to
be in continuous service of the petitioner DTC and accordingly
answered the reference on 9th July, 2004 in favour of the respondent
workman and against the petitioner DTC.
W.P.(C) Nos.10800/2005 & 10938/2005 Page 6 of 21
10. The petitioner DTC first filed W.P.(C) No.10800/2005
impugning the award aforesaid. The same came up before this Court
first on 6th July, 2005 when while issuing notice thereof, the operation
of the award was stayed. The petitioner DTC thereafter filed W.P.(C)
No.10938/2005 impugning the order dated 3rd August, 2000 of
dismissal of application under Section 33(2)(b). Notice thereof was got
issued owing to the pendency of W.P.(C) No.10800/2005 and vide
interim order dated 8th July, 2005, the operation of the order dated 3 rd
August, 2000 also stayed.
11. The counsels for the parties have been heard. The counsel for
the respondent workman informs that on an application under Section
17B of the I.D. Act, the respondent workman has been receiving 17B
wages at the rate of minimum wages. The counsel for the petitioner
DTC has at the outset contended that the Labour Court could not have
decided the reference under Section 10 of the ID Act on the basis of the
order under Section 33(2)(b) dismissing the application in as much as
the scope of the two proceedings is different; while the enquiry by the
W.P.(C) Nos.10800/2005 & 10938/2005 Page 7 of 21
Industrial Adjudicator under Section 33(2)(b) is a summary enquiry,
the enquiry in a reference under Section 10 is detailed and the Labour
Court ought to have decided the reference only after giving an
opportunity to the parties to complete their evidence.
12. Though the argument aforesaid appears attractive and I have also
in Delhi Transport Corporation Vs. Shyam Lal ILR (2010) V Delhi
431, Delhi Transport Corporation Vs. Rishi Prakash 2010 IV AD
(Delhi) 399 (intra court appeal being LPA No.508/2010 whereagainst
was dismissed on 10th February, 2011) and Delhi Transport
Corporation Vs. Nihal Singh 169 (2010) DLT 727 held that the scope
of the two proceedings is different and an order under Section 33(2)(b)
is ordinarily not res judicata in decision of a reference under Section 10
but on further consideration, it is found that it would be so only where
the application under Section 33(2)(b) has been allowed or where the
order of dismissal of application under Section 33(2)(b) is under stay in
a challenge thereto by the employer. The present was a case where the
award on industrial dispute was made after four years of the dismissal
W.P.(C) Nos.10800/2005 & 10938/2005 Page 8 of 21
of application under Section 33(2)(b) and when till that date there was
no challenge to the order of dismissal of application under Section
33(2)(b). The Labour Court, though has not expressly so recorded, is
thus not found to have committed any error in presuming the order of
dismissal of the application under Section 33(2)(b) to have attained
finality and given effect thereto. Strictly speaking, the effect of the
dismissal of the application under Section 33(2)(b) and attaining
finality would be to render the reference of industrial dispute arising
from the same facts / circumstances to be infructuous. It is noticeable
that the writ petition challenging the award also was filed prior to the
writ petition challenging the order of dismissal of application under
Section 33(2)(b).
13. As far as the challenge to the dismissal of the application under
Section 33(2)(b) is concerned, the same has been made after exactly
five years from the order. The counsel for the petitioner DTC fairly
admits that there is no explanation given in the petition or in the paper
book for the said long delay in preferring the petition and which itself,
W.P.(C) Nos.10800/2005 & 10938/2005 Page 9 of 21
in my opinion would be determinative of the fate of the petition. The
nature of the order under Section 33(2)(b) is such that the challenge, if
any, thereto ought to be immediate. If the management / employer
chooses not to challenge the dismissal of its application under Section
33(2)(b), the workman can safely assume that the employer does not
want to challenge the same or to press the order of dismissal. The
belated challenge would thus be liable to be rejected as barred by
laches, acquiescence and waiver.
14. The counsel for the petitioner DTC has however stated that the
disciplinary proceedings arising out from the said facts / transaction
were initiated also against the Driver of the subject bus and who was
also found guilty and dismissed; that application under Section 33(2)(b)
seeking approval of the order of the removal of the Driver was also
filed and was allowed and which order was challenged by the Driver.
She states that perhaps the delay in challenging the order under Section
33(2)(b) in the present case was occasioned for the said circumstances.
W.P.(C) Nos.10800/2005 & 10938/2005 Page 10 of 21
15. However, in the absence of any explanation on affidavit, no such
oral explanation can be entertained. In my view W.P.(C)
No.10938/2005 preferred after five years of the order impugned therein
is liable to be dismissed on that ground alone and the effect of dismissal
whereof would automatically lead to the dismissal of the other writ
petition.
16. The counsel for the petitioner has also contended that even if the
petition challenging the dismissal of application under Section 33(2)(b)
were to be barred by time, the other writ petition impugning the award
is within time.
17. Again the argument though attractive, has no merit. The order
under Section 33(2)(b) was made long back and was allowed to stand
and the effect will have to be given thereto and once the effect is given
thereto, the challenge to the award as aforesaid has become
infructuous. The Division Bench of this Court recently in D.T.C. v.
Prem Chand 176 (2011) DLT 476 has held that when there is no
approval by the Industrial Adjudicator on an application under Section
33(2)(b), the order of dismissal is ab initio void i.e. does not exist and
once the order of dismissal does not exist, the question of addressing
the reference (of dispute raised qua said dismissal) on merits by the
Labour Court is totally unwarranted.
W.P.(C) Nos.10800/2005 & 10938/2005 Page 11 of 21
18. The counsel for the petitioner DTC has also contended that the
respondent workman himself raised the dispute after a long delay of
seven years. However, the same would also be immaterial to the facts
and circumstances hereinabove.
19. However to satisfy the judicial conscience, the merits of the case
have also been examined and the counsels heard.
20. The counsel for the petitioner DTC has referred to Executive
Instructions of the DTC in her possession as to the duties of the
Conductor and which Executive Instructions are stated to be in force at
the contemporaneous time also. From the same, it is urged that it is the
duty of the Conductor to help the Driver in intimating the default in the
bus to the Central Control Room of the DTC immediately through any
means whatsoever. It is thus contended that there can be no perversity
in the departmental proceedings holding the respondent workman, even
though a Conductor, guilty. Much reliance is also placed on the fact of
the bus having been brought back to the Depot by the respondent
workman and the Driver of the bus themselves; it is contended that it is
W.P.(C) Nos.10800/2005 & 10938/2005 Page 12 of 21
evident therefrom that the bus could not be suffering from any fault. It
is contended that thus the reasoning given by the Labour Court of there
being no report of inspection of the bus, is erroneous in as much as the
facts speak for themselves.
21. I have enquired from the counsel for the petitioner DTC as to on
the basis of what record, it is stated that the bus was brought back by
the respondent workman and the Driver on their own. The counsel
states that since the record is that no intimation was given, there could
be no other way in which the bus could be brought back to the Depot
by the Driver and the Conductor. It is urged that the Driver and the
Conductor could not be expected to of their own having the fault
repaired.
22. Per contra, the counsel for the respondent workman has
contended that in the absence of any charge to the said effect, no
presumption can be drawn. He has also invited attention to the cross
examination of the Inquiry Officer before the Labour Court in which
he had admitted that in the departmental inquiry the respondent
W.P.(C) Nos.10800/2005 & 10938/2005 Page 13 of 21
workman was not given any opportunity to have the assistance of the
co-worker; that no list of witnesses and list of documents were
provided to the respondent workman before starting the inquiry; that
there was no Presenting Officer on behalf of the management and that
there was no statement of the respondent workman in the inquiry
proceedings and that the Inquiry Officer had not made any efforts to
summon anybody from the Workshop staff to ascertain whether the
bus was actually defective or not; not even the Foreman of the
petitioner DTC. Reference is also made to the statement in the cross
examination that it is only the Driver who knows better regarding the
defect in the bus and it is the Driver who is supposed to lodge the
report of the defect of the bus. Reference is yet further made to
admission in the cross examination that the charges had not been dealt
with separately in the inquiry report. He has thus contended that no
error can be found in the order of the Labour Court dismissing the
application under Section 33(2)(b).
W.P.(C) Nos.10800/2005 & 10938/2005 Page 14 of 21
23. Though the scope of two proceedings i.e. a reference under
Section 10 and the approval application under Section 33(2)(b) is
different as noted above but again as noted in Shyam Lal (supra), the
same appears to have been blurred. In the present case also, the
proceedings under Section 33(2)(b) appear to have been conducted as a
reference under Section 10. In view of the said prevalent procedure, it
was recorded in the judgment (supra) that where the Court finds that
the proceedings under Section 33(2)(b) have been conducted as a
reference under Section 10, the order in application under Section
33(2)(b) may have relevance in a Section 10 proceedings also. I find
the present case to be one of such nature.
24. My judicial conscience is thus satisfied that besides the aspect of
long delay, even otherwise there is no error requiring judicial review of
the order of dismissal of Section 33(2)(b) application. This Court in
exercise of judicial review would not interfere with the appreciation of
evidence by the Labour Court. The Labour Court in the face of the
evidence before it, has formed a view of no case of misconduct on the
W.P.(C) Nos.10800/2005 & 10938/2005 Page 15 of 21
part of the respondent workman having been proved, neither in the
departmental inquiry nor before the Labour Court and even if this
Court is to, on the same material, form a different view, the same is no
ground to interfere with the said order.
25. What has however perturbed me is that the effect of upholding
the dismissal order would be to deem that the order of removal had
never been passed and in which case, the respondent workman would
be entitled to reinstatement even without any direction of this Court or
of any other fora and with full back wages and all consequential
benefits. It appears inequitable to allow the same when the respondent
workman has not worked for the petitioner DTC for the last 20 years
and during which long time it is safe to assume that he must be doing
some other vocation.
26. The counsel for the petitioner in this regard has referred to DTC
Vs. Virender Singh 116 (2005) DLT 266 where also while dismissing
the challenge to the dismissal of application under Section 33(2)(b), the
W.P.(C) Nos.10800/2005 & 10938/2005 Page 16 of 21
back wages to which the workman was entitled to were restricted to
40% only. The counsel for the petitioner DTC thus states that it is
open to the Court to pass such an order.
27. Per contra, the counsel for the respondent workman with
reference to Jaipur Zila Sahakari (supra) has contended that once the
Constitution Bench has laid down that upon the dismissal of
application under Section 33(2)(b), the order of discharge/dismissal/
removal has to be deemed to have never been passed and the employee
having continued in service, the question of this Court reducing the
back wages does not arise. Reference in this regard is also made to
Rajinder Singh Vs. DTC 2003 IV AD (DELHI) 332 and the order
dated 15th December, 2009 of the Division Bench of this Court in LPA
No.525/2009 titled Shri Anup Singh Vs. DTC and order dated 4th
April, 2011 of the Division Bench of this Court in LPA No.167/2003
titled Shri Prem Shankar Driver Vs. Chief General Manager, DTC.
W.P.(C) Nos.10800/2005 & 10938/2005 Page 17 of 21
28. A careful perusal of the judgment in Virender Singh (supra)
shows that in that case the workman had also preferred a writ petition
seeking the relief of reinstatement and this Court after dismissing the
writ petition of the DTC against the order of dismissal of application
under Section 33(2)(b) had proceeded to consider the prayer in the writ
petition of the workman and while allowing the said prayer restricted
the back wages to 40%. The respondent workman in the present case
has not made any such prayer and is relying upon the Constitution
Bench dicta in Jaipur Zila Sahakari only. I fail to see as to in exercise
of which power can this Court restrict the consequence of the order of
dismissal of the application under Section 33(2)(b) attaining finality.
Once the Apex Court in Jaipur Zila Sahakari has laid down the effect
of dismissal of application under Section 33(2)(b), this Court cannot
allow the imagination to boggle merely because the consequences
appear to be grave. It is further felt that the said question was not
considered in Virender Singh and thus Virender Singh cannot be said
to be a precedent to the said effect.
W.P.(C) Nos.10800/2005 & 10938/2005 Page 18 of 21
29. The counsel for the respondent workman has stated that the
respondent workman is now about 53 years of age and has only five to
seven years of service left and wants to join duty and intends to put an
end to this litigation and has without prejudice to the rights and
contentions of the respondent workman offered that subject to the
petitioner DTC not litigating further, the respondent workman would
be willing to accept 50% only of the back wages and consequential
benefits to which he is entitled to, minus the 17B wages already
received by him. It is however stated that this offer is subject to the
petitioner DTC reinstating the respondent workman into duty and
paying him the amounts so due within 9 weeks of today and if the
petitioner DTC does not do so, the respondent workman, in accordance
with law would be entitled to the entire back wages and consequential
benefits etc.
30. Thus while dismissing the two writ petitions, it is directed:
W.P.(C) Nos.10800/2005 & 10938/2005 Page 19 of 21
(i) That though the respondent workman in accordance with law,
upon dismissal of the writ petitions is entitled to full back wages
and all consequential benefits including promotion etc., minus
the amounts already received under Section 17B but if the
petitioner DTC does not litigate further and within nine weeks of
today reinstates the respondent workman and also pays the
respondent workman 50% of all the monetary dues on account
of back wages, consequential benefits accruing owing to
Assured Career Promotions etc., within nine weeks from today,
the petitioner DTC shall not be liable to pay the balance 50% of
the said amount and the 50% so paid shall be received by the
respondent workman in full and final settlement of all his claims
against the petitioner DTC.
(ii) However, in the event of either of the aforesaid things being not
done within nine weeks from today, the respondent workman
would be entitled to the full amount as aforesaid found due to
him.
W.P.(C) Nos.10800/2005 & 10938/2005 Page 20 of 21
(iii) It is clarified that the monetary benefits are to be calculated on
the basis of ACPs only and the monetary benefits, if any, due out
of promotion to selection post, may be determined even after
nine weeks by constituting a special DPC for that purpose.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
APRIL18, 2011
„gsr‟
W.P.(C) Nos.10800/2005 & 10938/2005 Page 21 of 21