* IN THE HIGH COURT OF DELHI AT NEW DELHI
#11
+ LPA 29/2009
SMT. HARJEET KAUR ..... Appellant
Through Ms. Kittu Bajaj, Advocate.
versus
DTC ..... Respondent
Through Mr. J.N. Aggarwal, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
ORDER
% 11.05.2009
The appellant is widow of late Sh. Jogender Singh who was
employed as a Driver with Delhi Transport Corporation (DTC). He
expired on 04.07.1994 and before his death, he was removed from
service of the DTC vide order dated 21.10.1993 after holding a
departmental enquiry. At the time of removal of the husband of the
appellant certain labour disputes regarding general demands made by
the Union were pending before the Labour Court and the management
of the DTC filed an application on 21.10.1993 itself under Section
33(2)(b) of the Industrial Disputes Act, 1947 before the concerned
Industrial Tribunal for approval of its action to remove the husband of
the appellant from service. The approval application was dismissed as
having abated, vide order dated 09.03.1995. The appellant applied
for arrears of salary as well as terminal benefits of her deceased
husband vide legal notice dated 4.6.1999, besides several oral
requests. The respondent by letter dated 15.10.1999 informed her
that dues will be released to her only upon deposit of an amount of
Rs.65,810/- by her. The respondent declined to release the terminal
dues to the appellant on the ground that it was a case of termination
and therefore the appellant was not entitled to any arrears of salary or
to pensionary benefits. The appellant approached this Court by filing a
LPA No. 29/2009 Page 1 of 7
writ petition being W.P.(C) No. 7865/2002 seeking a direction to the
respondent to set aside the impugned order of removal and to pay the
wages and also for a direction to sanction family pension to her w.e.f.
4.7.1994 payable under the CCS (Pension) Rules as her husband was a
pension optee. This petition was dismissed by the learned single Judge
vide order dated 8.9.2004 on the ground of delay as the appellant was
seeking quashing of order of termination after 9 years. The
respondent, though appeared pursuant to the notice, did not apprise
the Court that no order of termination existed on that day on account
of dismissal of approval application under Section 33(2)(b).
Respondent also failed to inform that the application for approval was
dismissed as having abated. It appears that subsequently appellant
came to know about the rejection of the approval application and she
filed application for review of the judgment dated 8.9.2004. This
application came to be rejected on the ground that no ground for
review was made out. Being aggrieved, the appellant filed LPA No.
1875/2005 wherein the Division Bench permitted the appellant to
withdraw the appeal with liberty to file appropriate proceeding.
Thereafter, the appellant has filed the present petition for releasing
arrears of salary of her deceased husband from 21.10.1993 till the
date of his death i.e. on 4.7.1994 and also for other pensionary
benefits with interest by treating the deceased husband of the
appellant as an employee, who expired during service. The learned
single Judge dismissed the writ petition by order under appeal. It was
held that the legal heirs of deceased workman who were aware about
the impugned removal did not move the Industrial Tribunal for their
substitution in approval proceedings. Secondly, it was held that the
application was barred by principles of res-judicata.
2. Ms. Kitu Bajaj, learned counsel appearing for the appellant,
strenuously contended that since the approval application of the
respondent was dismissed by the Industrial Tribunal as abated the
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impugned order of removal had no legal consequence. Thus, the
widow is entitled to all arrears of his salary till his death and family
pension under the CCS (Pension) Rules. She relied upon the judgment
of Supreme Court in Jaipur Zila Sahakari Bhoomi Bank ltd. Vs. Sh.
Ram Gopal Sharma & Ors, JT 2002 (1) SC 182 and particularly laid
emphasis on paras 14 & 15 of the judgment, which are extracted
below :
“14. Where an application is made under Section 33(2)(b)
proviso, the authority before which the proceeding is pend-
ing for approval of the action taken by the employer has to
examine whether the order of dismissal or discharge is
bona fide whether it was by way of victimization of unfair
labour practice; whether the conditions contained in the
proviso were complied with or not, etc. If the authority re-
fuses to grant approval obviously it follows that the em-
ployee continues to be in service as if order of discharge or
dismissal never had been passed. The order of dismissal or
discharge passed invoking Section 33(2)(b) dismissing or
discharging an employee brings an end of relationship of
employer and employee from the date of his dismissal or
discharge but that order remains incomplete and remains
inchoate as it is subject to approval of the authority under
the said provision. In other words, this relationship comes
to an end de jure only when the authority grants approval.
If approval is not given, nothing more is required to be
done by the employee, as it will have to be deemed that
the order of discharge or dismissal had never been passed.
Consequence of it is that the employee is deemed to have
continued in service entitling him to all the benefits avail-
able. This being the position, there is no need of a separate
or specific order for his reinstatement. But on the other
hand, if approval is given by the authority and if the em-
ployee is aggrieved by such an approval, he is entitled to
make a complaint under Section 33A challenging the order
granting approval on any of the grounds available to him.
Section 33A is available only to an employee and is intend-
ed to save his time and trouble inasmuch as he can
straightaway make a complaint before the very authority
where the industrial dispute is already pending between
the parties challenging the order of approval instead of
making efforts to raise an industrial dispute, get a refer-
ence and thereafter adjudication. In this view, it is not cor-
rect to say that even though where the order of discharge
or dismissal is inoperative for contravention of the manda-
tory conditions contained in the proviso or where the ap-
proval is refused, a workman should still make a complaint
under Section 33A and that the order of dismissal or dis-
charge becomes invalid or void only when it is set aside
under Section 33A and that till such time he should suffer
misery of unemployment in spite of statutory protection
given to him by the proviso to Section 33(2)(b). It is not
correct to say that where the order of discharge or dis-
missal becomes inoperative because of contravention of
proviso to Section 33(2)(b), Section 33A would be meaning-
LPA No. 29/2009 Page 3 of 7
less and futile. The said Section has a definite purpose to
serve, as already stated above, enabling an employee to
make a complaint, if aggrieved by the order of the ap-
proval granted.
15. The view that when no application is made or the one
made is withdrawn, there is no order of refusal of such ap-
plication on merit and as such the order of dismissal or dis-
charge does not become void or inoperative unless such an
order is set aside under Section 33A, cannot be accepted.
In our view, not making an application under Section
33(2)(b) seeking approval or withdrawing an application
once made before any order is made thereon, is a clear
case of contravention of the proviso to Section 33(2)(b). An
employer who does not make an application under Section
33(2)(b) or withdraws the one made, cannot be rewarded
by relieving him of the statutory obligation created on him
to make such an application. If it is so done, he will be hap-
pier or more comfortable than an employer who obeys the
command of law and makes an application inviting scrutiny
of the authority in the matter of granting approval of the
action taken by him. Adherence to and obedience of law
should be obvious and necessary in a system governed by
rule of law. An employer by design can avoid to make an
application after dismissing or discharging an employee or
file it and withdraw before any order is passed on it, on its
merits, to take a position that such order is not inoperative
or void till it is set aside under Section 33A notwithstanding
the contravention of Section 33(2)(b), proviso, driving the
employee to have recourse to one or more proceeding by
making a complaint under Section 33A or to raise another
industrial dispute or to make a complaint under Section
31(1). Such an approach destroys the protection specifical-
ly and expressly given to an employee under the said pro-
viso as against possible victimization, unfair labour prac-
tice or harassment because of pendency of industrial dis-
pute so that an employee can be saved from hardship of
unemployment.”
[Emphasis Supplied]
3. Learned counsel for the appellant submitted that the termination
is void ab initio and the deceased workman must be deemed to have
been continued in service till his death and the appellant is entitled to
the family pension. She submitted that the deceased husband was
never served in the approval proceedings and though the death of the
workman was apprised to the Tribunal by the respondent, legal heirs
were not brought on record despite specific orders of the Industrial
Tribunal and consequently the application came to be dismissed as
abated. She submitted that even when there is decline of approval not
on merits, the order of termination would become void and
LPA No. 29/2009 Page 4 of 7
inoperative. She submitted that learned single Judge was in error inplacing onus on the legal heirs of the deceased to implead themselves
in the approval application even when notice of the proceedings was
never served upon them.
4. We find considerable substance in the argument of the learned
counsel. In our opinion, the rejection of the approval application would
render the termination void ab initio and consequently the employee
would be deemed to be in service and the appellant is entitled to the
family pension as prayed by her. The only defence that was raised on
behalf of the DTC is that the present petition is barred by res-judicata.
As stated earlier, the fact of rejection of the approval application was
suppressed from this Court when the earlier petition was dismissed on
10.10.2004. The writ petition was dismissed solely on the ground of
delay and the fact of the rejection of application for approval was not
an issue before the Court. This fact was brought to the notice of the
learned Single Judge in the review proceedings, where the review
application was dismissed without going into the merits of the
contention. The LPA filed against the order of rejection of the review
application was withdrawn and the Division Bench granted liberty to
the appellant to adopt appropriate proceedings. The learned counsel
for the appellant has contended and in our opinion rightly that when
there was no determination of the case on merits, it cannot operate as
res-judicata in a subsequent proceeding. In support of her contention,
she relied upon the decisions of the Supreme Court in Sheodhan
Singh Vs. Daryo Kunwar, AIR 1966 SC 1332, Inacio Martins Vs.
Narayan Hari Naik, (1993) 3 SCC 123 and State of Maharashtra
Vs. M/s National Construction Com. Bombay, AIR 1996 SC 2367.
In Sheodhan Singh Vs. Daryo Kunwar (supra), while considering
the meaning of the words “heard and finally decided”, used in Section
11 of the Code, the Court observed:
“Where, for example, the former suit was dismissed
LPA No. 29/2009 Page 5 of 7
by the trial Court for want of jurisdiction ……….. or on
the ground of non-joinder of parties ….. and the
dismissal is confirmed in appeal (if any), the decision
not being on merits, would not be res judicata in a
subsequent suit”.
5. This view was followed in Inacio Martins Vs. Narayan Hari
Naik (supra). This issue was again considered in the case of State of
Maharashtra Vs. M/s National Construction Com. Bombay
(supra) where it was held that the bar under Section 11 of CPC applies
only if the matter directly and substantially in issue in the former suit
has been heard and finally decided by a Court competent to try such
suit. This clearly means that on a matter or issue in question, there
has to be an application of the judicial mind and a final adjudication
made. If the former suit is dismissed without any adjudication on the
matter in issue or merely on a technical ground of non-joinder, that
cannot operate as res-judicata. The contention of the DTC counsel that
the petition is barred by res-judicata is therefore liable to be rejected.
6. It has been consistently held by several judgments of the
Supreme Court that pension is neither a bounty nor a matter of grace
depending upon the sweet will of the employer and that it creates a
vested right. The pension is not an ex-gratia payment but it is a
payment for the past service rendered and it is a social welfare
measure rendering socio-economic justice to those who in the hey-day
of their life ceaselessly toiled for the employer on an assurance that in
their old age they would not be left in lurch. The right of family
pension cannot be deprived on mere technicalities as the employer has
failed to obtain the approval under Section 33(2)(b) of the Industrial
Disputes Act. The termination of the deceased employee was clearly
void ab initio and he must be deemed to have been continued in
service till his death on 4.7.1994. Learned counsel appearing for the
appellant states that she has no objection if arrears of salary of the
deceased workman from the date of his termination till the date of his
LPA No. 29/2009 Page 6 of 7
death is adjusted towards the outstanding loan amount. We hasten to
add that no such amount is liable to be adjusted against the family
pension. The respondent is directed to release the family pension
including the arrears of family pension in favour of the appellant within
six weeks from today along with interest @ 12% per annum. Appeal is
disposed of accordingly.
CHIEF JUSTICE
NEERAJ KISHAN KAUL, J
MAY 11, 2009
dk
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