ORDER
A.K. Sikri, J.
1. The petitioner was employed by Delhi Transport Corporation (DTC) as Conductor since 1983. His services were terminated vide order dated 30.4.85 under Clause 9(b) of the DRTA (Conditions of Appointment & Service) Regulations 1952 (hereinafter to be called as “Regulations”). It may be noted that services of large number of employees of DTC were terminated at that point of time invoking provisions of Clause 9(b) of Regulations. This regulation laid down that services even of a regular employee can be terminated by giving three months notice without assigning any reasons or holding any enquiry. Many of these terminated persons filed writ petitions challenging the termination order and also challenging the vires of Regulation 9(b). A Division Bench of this Court in its judgment dated 14-5-86 in the case entitled DTC Mazdoor Congress Vs. Union of India & Another declared Regulation 9(b) as unconstitutional and directed reinstatement of persons whose services were terminated after invoking of Clause 9(b) of Regulations. (It may be mentioned that the aforesaid judgment of this Court
has been upheld by the Constitutional Bench of Supreme Court in the case of Delhi Transport Corporation Vs. DTC Mazdoor Congress ). Petitioner had not filed any writ petition against his termination order dated 30.4.85. Instead he raised an industrial dispute by sending demand notice dated 28.10.87. This demand notice is sent after the aforesaid judgment of the High Court. Since DTC did not accede to his demand, he approached Conciliations Officer and raised industrial dispute. As the conciliation proceedings ended in failure, the appropriate Government made reference of the dispute for adjudication by Labour Court No.-IX vide order dated 8-11-88 with the following terms of reference :
“Whether the termination of the services of Sh. Krishan Pal Singh is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?”
2. On receipt of reference by the Labour Court, notices were issued to both the parties. Petitioner filed his statement of claim to which written statement was filed by DTC raising various preliminary objections about validity of the reference. On merits, it was pleaded that petitioner/workman was caught by special checking squad for selling bogus tickets in Bus No. 4027 Route No. 450 Delux and he was challaned vide Challan No. 120318 by S/Sh. Pritam Singh and Harbans Singh, ATI for issuing 12 bogus tickets of Re. 1 each. Besides one block of 42 unpunched tickets of Re.1/- was found in his possession which was not entered in his Day Bill. The said tickets were issued to another conductor Sh. Nain Singh, B.No.15669 whose tickets were stolen. The matter was got investigated through Vigilance Section who found the workman guilty and that is why his services were terminated.
3. During the pendency of reference, interim award was passed on 16.10.89 directing the management to pay 75% of the wages last drawn by the petitioner. At that time, the appeal of the DTC against the judgment dated 14-5-86 passed by High Court was pending in Supreme Court. It appears that after the Supreme Court upheld the judgment of this Court, DTC reinstated the petitioner also in May, 1991.
4. It may be mentioned that High Court while delivering judgment dated 14-5-86 had given liberty to DTC to take appropriate departmental action against the workers whose services were terminated by invoking Regulation 9(b). Accordingly, on 6-11-92 a charge-sheet was issued to the petitioner. Petitioner filed an application before the Labour Court where the reference was pending for restraining the DTC from taking action without permission of the court. On 4-11-93 on this application of the petitioner, order was passed by the Labour Court observing that the Court was not empowered under the Industrial Disputes Act to restrain the respondents from holding disciplinary proceedings against the petitioner. However, Labour Court noticed that there was specific provision in the Industrial Disputes Act in the form of Section 33(1) whereby no employer could discharge or punish any employee for any misconduct connected with the industrial dispute when the said dispute is pending before the Conciliation Officer or a Board or a
Labour Court without express permission in writing of such Conciliations Officer, Board or Court. In view thereof, Labour Court directed that DTC shall not discharge or punish the petitioner in respect of the misconduct on the basis of which the services of the petitioner had been dispensed with and the dispute was pending before the Labour Court. Enquiry was held and in the Enquiry findings were returned holding that the charges levelled against the petitioner stood proved. On 27.12.93 a show cause notice was issued requiring the petitioner to show cause as to why the petitioner be not removed from service. He made representation on 20.6.94. After considering his representation, petitioner was removed from service on 25.10.94. This prompted the petitioner to move an application for contempt of court on 25.11.94 alleging violation of order dated 4.11.93. In reply to this application DTC submitted that charge-sheet dated 6.11.92 had no relevancy with the pending case. It was submitted that while directing reinstatement of workman due to striking down to Clause 9(b) vide order dated 5.12.90. Depot Manager was directed to reinstate the employees removed under Clause 9(b) and in the Offer memo the management made it clear that the employees were being taken back on duty in accordance of orders of High Court. It was open to the DTC to take such action as was available according to law and DTC reserved its rights to take further action as considered fit and proper in the circumstances of the case. It was in pursuance of said offer memo that the workman was reinstated. After holding a detailed enquiry on the charge-sheet the workman was found guilty and removed from service. On issue of show cause notice dated 27.12.93 the workman rushed to the High Court and filed writ petition No.41/94 for restraining the management to take action. In said writ petition, the management was restrained by High Court and order dated 4.11.93 passed by Labour Court was superseded by said order of the High Court. Subsequently, the writ was dismissed by the High Court vide order dated 19.4.94 and the workman was granted 4 weeks time to file reply to show cause notice. He did not pay any heed to the said order of the High Court.
5. The petitioner also moved application under Section 33A of the Industrial Disputes Act alleging that his removal was in contravention of Section
33(1)(a) of the Industrial Disputes Act as prior permission of the
Labour Court was not obtained before passing removal order dated 25.10.94. In this specification the petitioner made the following prayers :
“(a) to take on record the present complaint and hold that the order of removal dated 25.10.94 and the entire proceedings of enquiry etc. are wholly illegal, invalid, improper, incompetent, mala fide, capricious vindictive and untenable.
(b) to pass an order that the order of removal dated 25.10.94 is wholly illegal, unjustified and the workman is entitled to reinstatement in service with full back wages and all other benefits and arrears of wages since 30.4.1985 interest at the rate of 18% P.A. be also awarded from 1985 till date of payment. The complainant has also not been paid full wages in terms of interim award/order and the respondent management is required to pay the same. The wages be calculated according to revised pay scale of 4th Pay Commission and 5th Pay Commission. Costs of the proceed ings may also be awarded to the complainant together any other relief that may be deemed fit and proper in the circumstances of the case.
6. Thereafter arguments were heard the Labour Court proceeded to answer reference dated 8-11-88 holding that the reference itself became infructuous and consequently applications filed by the petitioner also did not survive. It is against this Award dated 2.3.98 that the petitioner had filed the present writ petition.
7. While holding that the reference had become infructuous, Labour Court has observed as under :
“Now, the basic question which arise is whether reference subsists or has become infructuous if does not involve inter-petition of any law. Rather it requires application of common sense. When a reference was received in 1988, it could pertain to termination which took place prior to 1988 and not subsequent to 1988. The termination prior to 1988 has already been revoked by the management itself in 1991 and that brought an end to the reference. For subsequent termination of 1994, the workman should have approached the appropriate Government afresh and should have got the matter referred afresh which he did not. Rather he chose to continue with the existing reference, move application for contempt of Court filed one writ petition No. 41/94 and then another writ petition No. 4566/94. Both the writs were dismissed by the High Court, the first one on 19.4.94 and the second one on 10.1.95”.
8. I have heard the arguments advanced by Mr. Charya challenging the aforesaid award. However, I am inclined to hold that the Award of the Labour Court holding that the reference has become infructuous is valid and proper and does not call for any interference. It may be recapitulated that the services of the petitioner were terminated under Clause 9(b) of the Regulation on 30.4.85. The Union of DTC employees, namely., DTC Mazdoor Congress had filed writ petition against mass termination by DTC resorting to provisions contained in Regulation 9(b) of the Regulations and it is the validity of this provision which came up for consideration before this Court and Division Bench struck down the said regulation as unconstitutional, consequently, holding that termination of the employees under Regulation 9(b) was illegal. After this judgment only the petitioner raised industrial dispute and relied upon the said judgment in support of his contention that his termination was honest, illegal and void. When the reference was made, appeal of DTC against the judgment dated 14.5.86 of this Court was pending before the Supreme Court. May be for this reason DTC contested the case filed by the petitioner. However, after the judgment was pronounced by Supreme Court in the year 1991, the DTC took petitioner back in service reinstating him in May, 1991. After reinstatement of the petitioner in May, 1991 insofar as the question of termination referred to by order dated 8.11.88 is concerned the same did not survive. It has to be borne in mind that the reinstatement was in compliance of judgment of this court as upheld by Supreme Court striking down Regulation 9(b) of the Regulation and all similarly situated persons were given the same treatment by the DTC. The only relief which the petitioner could ask for was regarding back wages. In the impugned Award the Labour Court directed the DTC to pay the petitioner full payment of back wages at the rate of last drawn wages for the entire period and while directing so Labour Court noticed that similarly placed employees were allowed salary from the date of termination in the same manner. Insofar as issuance of charge-sheet dated 6-11-92 and action taken pursuant thereto is concerned, it is the start of fresh chapter which gives fresh cause of action to the petitioner. After the serving of charge-sheet, no doubt petitioner filed an application before the Labour Court restraining the management from proceeding with the enquiry and order dated 4-11-93 was passed directing the DTC not to discharge or punish the petitioner in respect of misconduct on the basis of which the services of the petitioner had been dispensed with and the dispute was referred to the Labour Court but thereafter when the show cause notice dated 27-12-93 was issued after the enquiry, the petitioner rushed to this Court and filed Writ Petition No. 41/94 in which he prayed for restraining the DTC from taking any action against the petitioner. In the said writ petition this Court initially passed an order restraining DTC from proceeding against the petitioner. However, subsequently this writ petition was dismissed vide order dated 19-4-94 and petitioner was granted four weeks time to file reply to the show cause notice. It clearly shows that notwithstanding order dated 4-11-93 passed by Labour Court, this Court dismissed the writ petition and allowed DTC to proceed further on the basis of show cause notice dated 27-12-93. Therefore, it would not be proper for the petitioner to rely upon order dated 4-11-93. The Labour Court in the impugned Award has brushed aside the contention of the petitioner that the subsequent termination order dated 25-10-94 can be challenged as the same is violative of order dated 4-11-93 passed by Labour Court after noticing the aforesaid facts and has held as under :
“Even now, the A/R of the workman emphasised that order of Termination can be challenged in this very reference because it is in violation of order dated 4.11.93 passed by this court restraining the management from taking any action without prior permission of the court. I am unable to agree. At the most violation of that order could entitle the workman to take action for contempt of court which he has tried to avail. Unfortunately, period of one year has expired but no order has been passed on his application for contempt and now no reference for contempt of court can be sent as the same will be barred by Section 20 of Contempt of Courts Act. Even otherwise the contention of the management that order dated 4.11.93 of this court stood merged in the order of this Court stood merged in the order of High Court passed on 5.1.94 in Civil Writ No. 41/94 appears to be well-founded. It is true that said writ did not arise out of the present case but nevertheless the order of higher court must supersede the order of lower court. Ultimately, when the writ was dismissed on 19.4.94, interim order dated 5.1.94 passed by High Court and order dated 4.11.93 passed by this court both stood vacated.
9. I agree with the view taken by the Labour Court. In coming to the aforesaid conclusion, the Labour Court has also been influenced by the following factors :
A. In the Writ Petition No. 41/94 filed by the petitioner, petitioner had also taken the ground that Depot Manager was not empowered to take any action during the pendency of industrial dispute without permission of the Labour Court. Notwithstanding such plea, writ petition was dismissed and High Court allowed DTC to continue with the proceedings.
B. The petitioner had filed another writ petition being CWP. No. 4566/94 and even this writ petition was dismissed as withdrawn. Significantly petitioner had sought permission to withdraw this petition with liberty to pursue his application under Section 33-A before the Labour Court. However, while passing order dated 10.1.95 dismissing the writ petition as withdrawn, no such permission was granted which amounts to denial of the permission. This indicates that permission to pursue the matter was declined.
C. Basic foundation of application under Section 33-A of the Industrial Disputes Act is violation of Section 33(1) which uses the word “Dispute”. The said subject matter came up for consideration in 1979 LIC (Noc) 2, Andhra Pradesh Division Branch and it was held that Industrial Dispute under Section 33(1) has special reference to dispute which has been referred to court. It can only mean dispute referred to Court. It cannot mean any other dispute. Any other difference which may arise subsequent to reference of dispute to court does not come within the ambit of Section
33(1).
10. For the aforesaid reasons, it can be concluded that second termination order dated 25.10.94 was a fresh cause of action totally unconnected with the dispute referred relating to first termination which was withdrawn and petitioner reinstated back in service much before initiating action against the petitioner by way of departmental enquiry. For this Labour Court has given liberty to seek fresh reference from the appropriate Government in accordance with law in the impugned award dated 2.3.98 itself. The writ petition is devoid of any merit and is, accordingly, dismissed. There shall be no orders as to costs.