*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th May, 2011.
+ W.P.(C) 3358/2011
% CHANDER BHAN ..... Petitioner
Through: Mr. A.K. Sharma & Mr. Pappu
Singh, Advocates.
Versus
DTC ..... Respondent
Through: Ms. Latika Chaudhary & Ms.
Urvashi Malhotra, Advocates for
Mrs. Avnish Ahlawat, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition impugns the order dated 18 th August, 2007 of the
Industrial Adjudicator allowing the application of the respondent DTC
under Section 33(2)(b) of the I.D. Act and thereby granting approval to the
W.P.(C)3358/2011 Page 1 of 6
action dated 13th December, 1991 of the respondent DTC of removal of the
petitioner workman from service.
2. The writ petition has been preferred after three and a half years of
the order impugned; there is no explanation whatsoever in the writ petition
for the unusual long delay in preferring the same. Upon being quizzed in
this regard, the counsel for the petitioner workman states that the petitioner
workman has contacted him now only. Upon enquiry as to why the
petitioner workman did not contact earlier, it is generally stated that he had
settled down in his native village and did not have money to contest the
proceedings and has filed the present writ petition only after mustering up
the expenses required to be incurred therefor.
3. Without such pleas being taken on oath, the same cannot be
entertained. Even otherwise, the respondent DTC has a recognized
workers union and it is found that most of the disputes are pursued by the
union representatives and in the circumstances the explanation given does
not inspire confidence.
W.P.(C)3358/2011 Page 2 of 6
4. The matter has even otherwise be examined on merits. The
petitioner was removed from service on the charge of unauthorized
absence of 92 days between 1st January, 1990 to 31st March, 1991. Owing
to the pendency then of the general dispute between DTC and its workmen,
the application under Section 33(2)(b) was necessitated. It appears that the
said application under Section 33(2)(b) was dismissed on 20th November,
2001. The respondent DTC preferred W.P.(C) No.1020/2002 in this Court
against the said order which was allowed on 3 rd February, 2005 and the
order of the Industrial Adjudicator set aside and the matter remanded to the
Industrial Adjudicator for decision of the application.
5. The petitioner workman has chosen not to place the order dated 3 rd
February, 2005 in the earlier writ petition before this Court and the counsel
is not in possession of the same today also.
6. It is the case of the petitioner that the respondent DTC pursuant to
the order of remand, did not lead any evidence whatsoever.
7. The Industrial Adjudicator found that the petitioner had admitted the
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charge against him of unauthorized absence for 92 days during the period
of 1st January, 1990 to 31st March, 1991 but had stated that he had taken 76
days leave and not 92 days leave he was charged with; it was also the case
of the petitioner workman that he had filed applications for leave but the
officials of DTC did not consider those applications. The Industrial
Adjudicator on perusal of records held that the petitioner workman had
examined only one witness and whose evidence was found to be not
trustworthy; the case of the petitioner workman of having applied for leave
was disbelieved and the charge of unauthorized absence held to have been
made out and in accordance with DTC Vs. Sardar Singh 2004 (6) SCALE
613 the action of the respondent DTC of removal of the petitioner
workman from service was approved.
8. I have enquired from the counsel for the petitioner workman
whether the petitioner workman has raised any dispute qua the termination
of his services. The answer is in the negative.
9. The scope of a proceeding under Section 33(2)(b) has been
discussed in detail in DTC Vs. Shyam Lal ILR (2010) V Delhi 431. It has
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been held that only inquiry to be made under Section 33(2)(b) is as to
whether the action (of which approval is sought) has been taken against the
workman to derive any advantage in the pending legal dispute; else the
proceedings under Section 33(2)(b) cannot be substituted for the
adjudication of a dispute under Section 10 of the Act.
10. In the present case neither before the Industrial Adjudicator nor
before this Court there is any plea of the respondent DTC having taken
action of which approval was sought, against the petitioner workman to
derive any advantage in the then pending dispute and owing whereto the
application under Section 33(2)(b) was necessitated.
11. Even if there had been any justification for the petitioner not raising
any dispute till the earlier order dismissing the application under Section
33(2)(b), at least after the said order was set aside by this Court in the
earlier writ petition aforesaid, the petitioner workman ought to have raised
the industrial dispute qua his termination. Similarly, even if it were to be
presumed that the petitioner was not required to raise a dispute till the time
of the pendency of the application under Section 33(2)(b), at least when the
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same was allowed about three years ago, the dispute ought to have been
raised.
12. It would not be expedient to entertain this writ petition against an
order under Section 33(2)(b), to make an inquiry as is required to be done
under Section 10 of the Act.
13. There is no merit in the writ petition; the same is dismissed.
14. The counsel for the petitioner workman seeks liberty to raise the
industrial dispute. Liberty is granted, in accordance with law.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MAY 24, 2011
bs
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