{"id":87554,"date":"2011-04-04T00:00:00","date_gmt":"2011-04-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/delhi-transport-corporation-vs-shri-ramesh-chander-on-4-april-2011"},"modified":"2016-08-07T02:09:57","modified_gmt":"2016-08-06T20:39:57","slug":"delhi-transport-corporation-vs-shri-ramesh-chander-on-4-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/delhi-transport-corporation-vs-shri-ramesh-chander-on-4-april-2011","title":{"rendered":"Delhi Transport Corporation vs Shri Ramesh Chander on 4 April, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Delhi Transport Corporation vs Shri Ramesh Chander on 4 April, 2011<\/div>\n
Author: Dipak Misra,Chief Justice<\/div>\n
*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                               Judgment Reserved on :           March 15, 2011\n                                Judgment Delivered on:           April 4, 2011\n\n+      LPA No. 610 Of 2005\n\n       Delhi Transport Corporation                    ..... Appellant\n                         Through: Mr.Sarfaraj    Khan       and   Mr.S.M.\n                                   Vaseem, Advocates.\n                              Versus\n       Shri Ramesh Chander                            ..... Respondent<\/pre>\n
                         Through: Mr.Mahabir Singh, Sr. Advocate with
\n                                   Mr. Rakesh Dahiya, Mr. Gayan Deep
\n                                   and Mr. Ajay Pandey, Advocates.\n<\/p>\n
       CORAM:\n<\/p>\n
       HON’BLE THE CHIEF JUSTICE
\n       HON’BLE MR. JUSTICE SANJIV KHANNA<\/p>\n
1.    Whether reporters of the local papers be allowed to see the judgment?     YES\n<\/p>\n
2.    To be referred to the Reporter or not?                                    YES
\n3     Whether the judgment should be reported in the Digest?                    YES<\/p>\n
DIPAK MISRA, CJ<\/p>\n
          In this intra-Court appeal, the warrantableness of the order dated<\/p>\n
14.9.2004 passed by the learned Single Judge in CW No.1998\/2004 is called<\/p>\n
in question.\n<\/p>\n<\/p>\n
2.     Filtering the unnecessary details, the facts which are essential to be<\/p>\n
stated are that the appellant, Delhi Transport Corporation (for short \u201ethe<\/p>\n
LPA 610\/2005                                                     page 1 of 27
\n DTC\u201f), filed an application under Section 33(2)(b) of the Industrial<\/p>\n
Disputes Act, 1947 (for brevity \u201ethe Act\u201f) before the Industrial Tribunal-II<\/p>\n
in O.P. No.389\/93 seeking approval of the action of removal of the<\/p>\n
respondent – workman from service. The tribunal framed a preliminary<\/p>\n
issue on 2.9.1996 to the effect whether a legal and valid enquiry had been<\/p>\n
held against the workman and, by order dated 7.8.2002, decided the issue<\/p>\n
against the DTC.        Thereafter, the tribunal framed three issues and<\/p>\n
eventually came to hold that the absence of the respondent – workman did<\/p>\n
not amount to misconduct and, therefore, declined to grant approval to the<\/p>\n
management DTC under Section 33(2)(b) of the Act vide order dated<\/p>\n
26.2.2003.\n<\/p>\n<\/p>\n
3.     Being dissatisfied with the aforesaid order, the DTC invoked the<\/p>\n
jurisdiction of this Court and the learned Single Judge, placing reliance on<\/p>\n
the decision rendered in Delhi Transport Corporation v. Sardar Singh,<\/a><\/p>\n
2004 (6) SCALE 613, came to hold as follows:\n<\/p>\n<\/p>\n
               “15. In the present case there is no dispute that the
\n               respondent workman did not obtain any proper
\n               sanction for his leave. The mere submission of a leave
\n               application or a medical certificate is of no consequence
\n               unless the leave is duly approved or sanctioned.<\/p>\n
LPA 610\/2005                                               page 2 of 27\n<\/p><\/blockquote>\n
                16.    In view of the decision of the Supreme Court
\n               referred to above, since the learned Tribunal has
\n               refused to grant approval only on the ground that the
\n               period of absence was treated as leave without pay
\n               which did not amount to misconduct, the absence being
\n               undisputed, there is no option but to set aside the order
\n               passed and to accord approval to the application filed
\n               by the Petitioner under Section 33(2)(b) of the Act.”\n<\/p><\/blockquote>\n
4.     After so holding, the learned Single Judge posed the question what<\/p>\n
relief should be granted to the DTC. To adjudicate the said facet, the<\/p>\n
learned Single Judge dwelled upon the issue relating to the status enjoyed<\/p>\n
by the respondent – workman during the intervening period. The writ<\/p>\n
court referred to the decision in Jaipur Zila Sahakari Bhoomi Vikas Bank<\/p>\n
Ltd. v. Ram Gopal Sharma and others<\/a>, (2002) 2 SCC 244 and opined that<\/p>\n
when approval is granted, it relates back to the date of the order of<\/p>\n
dismissal or discharge and if approval is not granted, it would be deemed<\/p>\n
as if the order of dismissal or discharge had never been passed and,<\/p>\n
therefore, the employee is deemed to have continued in service entitling<\/p>\n
him to all the benefits available without the need for passing a separate or<\/p>\n
specific order for his reinstatement. The learned Single Judge has further<\/p>\n
opined that the workman has only an accrued right to get his wages and<\/p>\n
other benefits and the right gets crystallized or vested in the workman<\/p>\n
LPA 610\/2005                                               page 3 of 27
\n when the approval application is rejected. After so stating, the learned<\/p>\n
Single Judge referred to the decisions in Ram Kishan v. Lt. Governor,<\/p>\n
National Capital Territory of Delhi & Anr.,<\/a> 2001 VII AD (Delhi) 949,<\/p>\n
Rajender Singh v. Delhi Transport Corporation & Anr.,<\/a> 98 (2002) DLT 706<\/p>\n
(DB), Randhir Singh v. Delhi Transport Corporation & Anr.,<\/a> 2002 (62) DRJ<\/p>\n
536, Rajinder Singh v. DTC & Ors.,<\/a> 104 (2003) DLT 982 and Roshan Singh<\/p>\n
v. Delhi Transport Corporation, 105 (2003) DLT 110 to highlight that the<\/p>\n
DTC, despite facing rejection orders under Section 33(2)(b) of the Act quite<\/p>\n
often, did not reinstate the workman as a consequence of which the<\/p>\n
employees were compelled to file writ petitions for reinstatement which<\/p>\n
was unnecessary.\n<\/p>\n<\/p>\n
5.     After taking note of the said decisions, the learned Single Judge<\/p>\n
adverted to the facts of the case at hand. He has noted that the order of<\/p>\n
dismissal was passed on 28.5.1993. In terms of the decision rendered by<\/p>\n
the Apex Court in Ram Gopal Sharma and others (supra), the order of<\/p>\n
dismissal was incomplete or inchoate until the tribunal rendered a decision<\/p>\n
on the approval application. On 26.2.2003, the tribunal declined to grant<\/p>\n
approval to the action of the DTC and, therefore, the workman is deemed<\/p>\n
to have been continuing in service as on 26.2.2003 as if the order of<\/p>\n
LPA 610\/2005                                             page 4 of 27
\n dismissal was never passed. The learned Single Judge further held that the<\/p>\n
respondent – workman continued in service with such a status at least<\/p>\n
until 13.2.2004, when the order dated 26.2.2003 was stayed by this Court.<\/p>\n
Thereafter, the learned Single Judge held thus:<\/p>\n
               “27. Since I have now held that approval under
\n               Section 33(2)(b) of the Act was wrongly declined, the
\n               Respondent workman would stand dismissed with
\n               effect from 28th May, 1993 (the date of the dismissal
\n               order). This would be in accordance with the law laid
\n               down by the Supreme Court in Ram Gopal Sharma.
\n               However, if the law is applied literally and strictly, it
\n               will mean that the Respondent workman was wrongly
\n               paid his wages for this period (assuming he was so
\n               paid) and he should, therefore, refund the amounts
\n               received by him from the date of his dismissal. I think
\n               this is too harsh and the Supreme Court could not have
\n               intended such a result.<\/p><\/blockquote>\n
               28.   It has been held on several occasions that the Act
\n               is a beneficial legislation and its provisions have to be
\n               construed liberally because it is a legislation enacted for
\n               the welfare of workers [See for example The Workmen
\n               of M\/s Firestone Tyre & Rubber Co. of India (P) Ltd. vs.
\n               The Management,<\/a> (1973) 1 SCC 813]. If one proceeds on
\n               this basis, it cannot be said by any stretch of
\n               imagination that the Act permits an employer to recover
\n               wages paid to a workman up to the date when approval
\n               under Section 33(2)(b) of the Act is declined or till the
\n               date when the order declining approval is stayed by the
\n               High Court. Therefore, one has to take a pragmatic and
\n               reasonable view of the matter, and after doing so, I am
\n               of the opinion that wages and other benefits paid to a
\n               workman, till the date when approval is declined and<\/p>\n
LPA 610\/2005                                                page 5 of 27
\n                even thereafter until the date when the order declining
\n               approval is stayed by the High Court, are required to be
\n               paid to him, and if so paid, are not required to be
\n               refunded by him.”\n<\/p>\n<\/p>\n
6.     On the basis of the aforesaid, the learned Single Judge proceeded to<\/p>\n
issue the directions as follows:\n<\/p>\n<\/p>\n
               “1.   The impugned order dated 26th February, 2003 is
\n               set aside. However, the Petitioner will pay to the
\n               Respondent workman, all wages and other benefits due
\n               to him until 13th February, 2004, that is, the date on
\n               which this Court stayed the impugned order. The
\n               payments should be made to the Respondent workman
\n               within six weeks from today.\n<\/p><\/blockquote>\n
               2.    When any industrial adjudicator declines to grant
\n               approval to an order of dismissal or discharge passed
\n               under Section 33(2)(b) of the Act, it is obliged to treat
\n               the workman as being on duty as per the law laid down
\n               by the Constitution Bench of the Supreme Court.
\n               Therefore, it must direct the employer to pay to the
\n               workman all wages and other benefits due to him until
\n               the date of the refusal order and it must also direct
\n               payment to be made within a specified and reasonable
\n               period of time.<\/p><\/blockquote>\n
               3.    When a writ petition is filed challenging an order
\n               passed by an industrial adjudicator declining approval
\n               under Section 33(2)(b) of the Act, the writ Court also is
\n               obliged to treat the Respondent workman as being on
\n               duty as per the law laid down by the Constitution
\n               Bench of the Supreme Court.          Consequently, the
\n               Respondent workman is entitled to wages and all other
\n               benefits as a result of the refusal by the industrial<\/p>\n
LPA 610\/2005                                               page 6 of 27
\n                adjudicator to grant approval under Section 33(2)(b) of
\n               the Act until the order of refusal is stayed by the writ
\n               Court. Therefore, the writ Court should insist, as a rule,
\n               that the employer should pay to the workman his dues
\n               until such time as the impugned order continues to
\n               operate.\n<\/p>\n
               4.    When a writ Court sets aside the order passed by
\n               an industrial adjudicator declining approval under
\n               Section 33(2)(b) of the Act, it will take effect from the
\n               date the employer passed the initial order of dismissal
\n               or discharge. However, keeping in view that the Act is
\n               a beneficial legislation, it must not direct the
\n               Respondent workman to refund the amount received by
\n               him towards wages and other benefits.”\n<\/p>\n<\/p>\n
7.     Assailing the legal sustainability of the order, it is submitted by<\/p>\n
Mr.Khan that once the order of non-approval is quashed and a conclusion<\/p>\n
is arrived at by the learned Single Judge that the order of dismissal would<\/p>\n
be valid with effect from 28th May, 1993, there was no justification to issue<\/p>\n
a direction for grant of all wages and benefits from 26th February, 2003 till<\/p>\n
13th February, 2004, the date the writ Court stayed the impugned order, in<\/p>\n
the absence of a statutory command or stipulation in the Act. It is his<\/p>\n
further submission that the order of approval has to date back to the date<\/p>\n
of dismissal and the learned Single Judge having so held could not have<\/p>\n
invoked the concept of beneficent legislation. Mr. Khan has also urged<\/p>\n
LPA 610\/2005                                                page 7 of 27
\n that the decisions relied upon by the learned Single Judge with regard to<\/p>\n
the action and attitude of the DTC would not empower or clothe the writ<\/p>\n
court with jurisdiction to issue a direction for payment for the interregnum<\/p>\n
period which has no sanction of law.\n<\/p>\n<\/p>\n
8.     Mr. Mahabir Singh, learned senior counsel, per contra, canvassed<\/p>\n
that the order passed by the learned Single Judge is absolutely impeccable<\/p>\n
because the workman continues to be in service till the order of dismissal<\/p>\n
is approved and as in the present case, since the order of non-approval<\/p>\n
was challenged almost after a year, the direction for payment of wage is<\/p>\n
justified. It is urged by him that when a discretionary relief is granted by<\/p>\n
the writ court, the same should not be dislodged in an intra-court appeal.<\/p>\n
9.     At the very outset, we may fruitfully refer to the decision in Ram<\/p>\n
Gopal Sharma and others (supra), where the Constitution Bench was<\/p>\n
addressing the following proposition:\n<\/p>\n<\/p>\n
               “If the approval is not granted under Section 33(2)(b) of
\n               the Industrial Disputes Act, 1947, whether the order of
\n               dismissal becomes ineffective from the date it was
\n               passed or from the date of non-approval of the order of
\n               dismissal and whether failure to make application
\n               under Section 33(2)(b) would not render the order of
\n               dismissal inoperative?”\n<\/p><\/blockquote>\n
LPA 610\/2005                                               page 8 of 27\n<\/p><\/blockquote>\n
 10.    Thereafter, their Lordships referred to the decisions in P.H.Kalyani<\/p>\n
v. Air France, Calcutta, AIR<\/a> 1963 SC 1756, Strawboard Mfg. Co. v.\n<\/p><\/blockquote>\n
Govind, AIR 1962 SC 1500, Tata Iron & Steel Co. Ltd. v. S.N. Modak, AIR<\/a><\/p>\n
1966 SC 380 and held thus:\n<\/p>\n<\/p>\n
               “13. The proviso to Section 33(2)(b), as can be seen
\n               from its very unambiguous and clear language, is
\n               mandatory. This apart, from the object of Section 33 and
\n               in the context of the proviso to Section 33(2)(b), it is
\n               obvious that the conditions contained in the said
\n               proviso are to be essentially complied with. Further,
\n               any employer who contravenes the provisions of
\n               Section 33 invites a punishment under Section 31(1)
\n               with imprisonment for a term which may extend to six
\n               months or with fine which may extend to Rs. 1000\/- or
\n               with both. This penal provision is again a pointer of the
\n               mandatory nature of the proviso to comply with the
\n               conditions stated therein. To put it in another way, the
\n               said conditions being mandatory, are to be satisfied if
\n               an order of discharge or dismissal passed under Section
\n               33(2)(b) is to be operative. If an employer desires to take
\n               benefit of the said provision for passing an order of
\n               discharge or dismissal of an employee, he has also to
\n               take the burden of discharging the statutory obligation
\n               placed on him in the said proviso. Taking a contrary
\n               view that an order of discharge or dismissal passed by
\n               an employer in contravention of the mandatory
\n               conditions contained in the proviso does not render
\n               such an order inoperative or void, defeats the very
\n               purpose of the proviso and it becomes meaningless. It is
\n               well-settled rule of interpretation that no part of statute
\n               shall be construed as unnecessary or superfluous. The<\/p>\n
LPA 610\/2005                                                page 9 of 27
\n                proviso cannot be diluted or disobeyed by an employer.
\n               He cannot disobey the mandatory provision and then
\n               say that the order of discharge or dismissal made in
\n               contravention of Section 33(2)(b) is not void or
\n               inoperative. He cannot be permitted to take advantage
\n               of his own wrong. The interpretation of statute must be
\n               such that it should advance the legislative intent and
\n               serve the purpose for which it is made rather than to
\n               frustrate it. The proviso to Section 33(2)(b) affords
\n               protection to a workman to safeguard his interest and it
\n               is a shield against victimization and unfair labour
\n               practice by the employer during the pendency of
\n               industrial dispute when the relationship between them
\n               are already strained. An employer cannot be permitted
\n               to use the provision of Section 33(2)(b) to ease out a
\n               workman without complying with the conditions
\n               contained in the said proviso for any alleged
\n               misconduct said to be unconnected with the already
\n               pending industrial dispute. The protection afforded to a
\n               workman under the said provision cannot be taken
\n               away. If it is to be held that an order of discharge or
\n               dismissal passed by the employer without complying
\n               with the requirements of the said proviso is not void or
\n               inoperative, the employer may with impunity discharge
\n               or dismiss a workman.<\/p><\/blockquote>\n
               14.    Where an application is made under Section
\n               33(2)(b) proviso, the authority before which the
\n               proceeding is pending for approval of the action taken
\n               by the employer has to examine whether the order of
\n               dismissal or discharge is bona fide; whether it was by
\n               way of victimization or unfair labour practice; whether
\n               the conditions contained in the proviso were complied
\n               with or not etc. If the authority refuses to grant
\n               approval obviously it follows that the employee
\n               continues to be in service as if order of discharge or
\n               dismissal never had been passed. The order of dismissal
\n               or discharge passed invoking Section 33(2)(b)<\/p>\n
LPA 610\/2005                                              page 10 of 27
\n                dismissing or discharging an employee brings an end of
\n               relationship of the employer and employee from the
\n               date of his dismissal or discharge but that order remains
\n               incomplete and remains inchoate as it is subject to
\n               approval of the authority under the said provision. In
\n               other words, this relationship comes to an end de jure
\n               only when the authority grants approval. If approval is
\n               not given, nothing more is required to be done by the
\n               employee, as it will have to be deemed that the order of
\n               discharge or dismissal had never been passed.\n<\/p>\n
               Consequence of it is that the employee is deemed to
\n               have continued in service entitling him to all the
\n               benefits available. This being the position there is no
\n               need of a separate or specific order for his
\n               reinstatement. But on the other hand, if approval is
\n               given by the authority and if the employee is aggrieved
\n               by such an approval, he is entitled to make a complaint
\n               under Section 33-A challenging the order granting
\n               approval on any of the grounds available to him.
\n               Section 33-A is available only to an employee and is
\n               intended to save his time and trouble inasmuch as he
\n               can straightaway make a complaint before the very
\n               authority where the industrial dispute is already
\n               pending between the parties challenging the order of
\n               approval instead of making efforts to raise an industrial
\n               dispute, get a reference and thereafter adjudication. In
\n               this view, it is not correct to say that even though where
\n               the order of discharge or dismissal is inoperative for
\n               contravention of the mandatory conditions contained in
\n               the proviso or where the approval is refused, a
\n               workman should still make a complaint under Section
\n               33-A and that the order of dismissal or discharge
\n               becomes invalid or void only when it is set aside under
\n               Section 33-A and that till such time he should suffer
\n               misery of unemployment in spite of statutory protection
\n               given to him by the proviso to Section 33(2)(b). It is not
\n               correct to say that where the order of discharge or<\/p>\n
LPA 610\/2005                                                page 11 of 27
\n                dismissal becomes inoperative because of contravention
\n               of proviso to Section 33(2)(b), Section 33-A would be
\n               meaningless and futile. The said Section has a definite
\n               purpose to serve, as already stated above, enabling an
\n               employee to make a complaint, if aggrieved by the
\n               order of the approval granted.”\n<\/p>\n
       Thereafter, their Lordships proceeded to state as follows:<\/p>\n
               “18. In view of what is stated above, we respectfully
\n               agree with and endorse the view taken in the case of
\n               Strawboard (supra) and Tata Iron & Steel Co. (supra) and
\n               further state that the view expressed in Punjab Beverages
\n               (P) Ltd. v. Suresh Chand,<\/a> (1978) 2 SCC 144 on the
\n               question is not the correct view. The question raised in
\n               the beginning of this judgment is answered
\n               accordingly.”\n<\/p><\/blockquote>\n
11.    It is worth noting that in Tata Iron & Steel Co. Ltd. (supra), their<\/p>\n
Lordships have opined thus:\n<\/p>\n<\/p>\n
               “It is now well-settled that the requirements of the
\n               proviso have to be satisfied by the employer on the
\n               basis that they form part of the same transaction; and
\n               stated generally, the employer must either pay or offer
\n               the salary for one month to the employee before passing
\n               an order of his discharge or dismissal, and must apply
\n               to the specified authority for approval of his action at
\n               the same time, or within such reasonably short time
\n               thereafter as to form part of the same transaction. It is
\n               also settled that if approval is granted, it takes effect
\n               from the date of the order passed by the employer for<\/p>\n
LPA 610\/2005                                               page 12 of 27
\n                which approval was sought. If approval is not granted,
\n               the order of dismissal or discharge passed by the
\n               employer is wholly invalid or inoperative, and the
\n               employee can legitimately claim to continue to be in the
\n               employment of the employer notwithstanding the order
\n               passed by him dismissing or discharging him. In other
\n               words, approval by the prescribed authority makes the
\n               order of discharge or dismissal effective; in the absence
\n               of approval, such an order is invalid and inoperative in
\n               law.\n<\/p><\/blockquote>\n
                     X            X            X            X<\/p>\n
               …the order being incomplete and inchoate until the
\n               approval is obtained, cannot effectively terminate the
\n               relationship of the employer and the employee between
\n               the appellant and the respondent; and so, even if the
\n               main industrial dispute is finally decided, the question
\n               about the validity of the order would still have to be
\n               tried and if the approval is not accorded by the
\n               Tribunal, the employer would be bound to treat the
\n               respondent as its employee and pay his full wages for
\n               the period even though the appellant may subsequently
\n               proceed to terminate the respondent’s services.\n<\/p><\/blockquote>\n
                                                   [Emphasis supplied]<\/p>\n<\/blockquote>\n
12.    In D.C. Roy v. Presiding Officer,<\/a> (1976) 3 SCC 693, their Lordships<\/p>\n
referred to the decision of the Constitution Bench in P.H.Kalyani (supra)<\/p>\n
and relied on the following observations:\n<\/p>\n<\/p>\n
               “The present is a case where the employer has held an
\n               inquiry though it was defective and has passed an order
\n               of dismissal and seeks approval of that order. If the
\n               inquiry is not defective, the labour court has only to see
\n               whether there was a prima facie case for dismissal, and<\/p>\n
LPA 610\/2005                                                page 13 of 27
\n                whether the employer had come to the bona fide
\n               conclusion that the employee was guilty of misconduct.
\n               Thereafter on coming to the conclusion that the
\n               employer had bona fide come to the conclusion that the
\n               employee was guilty i.e. there was no unfair labour
\n               practice and no victimisation, the labour court would
\n               grant the approval which would relate back to the date
\n               from which the employer had ordered the dismissal. If
\n               the inquiry is defective for any reason, the labour court
\n               would also have to consider for itself on the evidence
\n               adduced before it whether the dismissal was justified.
\n               However, on coming to the conclusion on its own
\n               appraisal of evidence adduced before it that the
\n               dismissal was justified its approval of the order of
\n               dismissal made by the employer in a defective inquiry
\n               would still relate back to the date when the order was
\n               made.”<\/p><\/blockquote>\n
        After placing reliance on the said observations, their Lordships held<\/p>\n
thus:\n<\/p>\n<\/p>\n
               “These observations directly cover the case before us
\n               because though the labour court, in the instant case,
\n               found that the inquiry was defective as it infringed the
\n               principles of natural justice, it came to the conclusion
\n               after considering the evidence adduced before it, that
\n               the dismissal was justified. The award of the labour
\n               court must therefore relate back to the date when the
\n               order of dismissal was passed on the termination of the
\n               domestic inquiry.”\n<\/p><\/blockquote>\n
LPA 610\/2005                                               page 14 of 27\n<\/p><\/blockquote>\n
 13.    At this juncture, it is useful to refer to certain authorities pertaining<\/p>\n
to the applicability of the doctrine of relation back. In Shri Parmeshwari<\/p>\n
Prasad Gupta v. Union of India,<\/a> (1973) 2 SCC 543, their Lordships were<\/p>\n
dealing with an issue in which the Board of Directors of a company<\/p>\n
affirmed the earlier resolution in a subsequent meeting which was<\/p>\n
properly convened.       It is worth noting that the earlier meeting was<\/p>\n
defective and, therefore, the resolution terminating the services of the<\/p>\n
General Manager was treated to be invalid. While dealing with the effect<\/p>\n
of the subsequent meeting, their Lordships have held thus:\n<\/p><\/blockquote>\n
               “Even if it be assumed that the telegram and the letter
\n               terminating the services of the appellant by the
\n               Chairman was in pursuance of the invalid resolution of
\n               the Board of Directors passed on 16.12.1953 to terminate
\n               his services, it would not follow that the action of the
\n               Chairman could not be ratified in a regularly convened
\n               meeting of the Board of Directors. The point is that even
\n               assuming that the Chairman was not legally authorized
\n               to terminate the services of the appellant, he was acting
\n               on behalf of the Company in doing so, because, he
\n               purported to act in pursuance of the invalid resolution.
\n               Therefore, it was open to a regularly constituted
\n               meeting of the Board of Directors to ratify that action
\n               which, though unauthorized, was done on behalf of the
\n               Company. Ratification would always relate back to the
\n               date of the act ratified and so it must be held that the
\n               services of the appellant were validly terminated on
\n               17.12.1953.”\n<\/p><\/blockquote>\n
LPA 610\/2005                                                page 15 of 27\n<\/p><\/blockquote>\n
 14.     In High Court of Judicature for Rajasthan v. P.P. Singh, (2003) 4<\/p>\n
SCC 239, after referring to the decision in Shri Parmeshwari Prasad Gupta<\/p>\n
(supra), it has been opined that even in a case where an initial action is<\/p>\n
illegal, the same can be ratified by a body competent therefor.\n<\/p><\/blockquote>\n
15.     In Maharashtra State Mining Corpn. v. Sunil,<\/a> (2006) 5 SCC 96, their<\/p>\n
Lordships have expressed thus:\n<\/p><\/blockquote>\n
               “7.    The High Court was right when it held that an act
\n               by a legally incompetent authority is invalid. But it was
\n               entirely wrong in holding that such an invalid act
\n               cannot be subsequently “rectified” by ratification of the
\n               competent authority. Ratification by definition means
\n               the making valid of an act already done. The principle is
\n               derived from the Latin maxim ratihabitio mandato
\n               aequiparatur, namely “a subsequent ratification of an act
\n               is equivalent to a prior authority to perform such act”.
\n               Therefore ratification assumes an invalid act which is
\n               retrospectively validated.”\n<\/p><\/blockquote>\n
16.     In Delhi Jal Board v. Mahinder Singh,<\/a> (2000) 7 SCC 210, while<\/p>\n
dealing with the doctrine of relation back in the backdrop of consideration<\/p>\n
by a Departmental Promotion Committee, the Apex Court has opined<\/p>\n
thus:\n<\/p><\/blockquote>\n
LPA 610\/2005                                               page 16 of 27
\n                “5.    The right to be considered by the Departmental
\n               Promotion Committee is a fundamental right
\n               guaranteed under Article 16 of the Constitution of
\n               India, provided a person is eligible and is in the zone of
\n               consideration. The sealed cover procedure permits the
\n               question of his promotion to be kept in abeyance till the
\n               result of any pending disciplinary inquiry. But the
\n               findings of the disciplinary inquiry exonerating the
\n               officer would have to be given effect to as they
\n               obviously relate back to the date on which the charges
\n               are framed. If the disciplinary inquiry ended in his
\n               favour, it is as if the officer had not been subjected to
\n               any disciplinary inquiry. The sealed cover procedure
\n               was envisaged under the rules to give benefit of any
\n               assessment made by the Departmental Promotion
\n               Committee in favour of such an officer, if he had been
\n               found fit for promotion and if he was later exonerated
\n               in the disciplinary inquiry which was pending at the
\n               time when the DPC met. The mere fact that by the time
\n               the disciplinary proceedings in the first inquiry ended
\n               in his favour and by the time the sealed cover was
\n               opened to give effect to it, another departmental
\n               enquiry was started by the Department, would not, in
\n               our view, come in the way of giving him the benefit of
\n               the assessment by the first Departmental Promotion
\n               Committee in his favour in the anterior selection. There
\n               is, therefore, no question of referring the matter to a
\n               larger Bench.”\n<\/p><\/blockquote>\n
17.    In Graphite India Ltd. and another v. Durgapur Projects Ltd. and<\/p>\n
others, (1999) 7 SCC 645, a two-Judge Bench of the Apex Court held that<\/p>\n
the controversy related to the grant of approval to effect the increase in<\/p>\n
tariff. It is worth noting that the approval was not there initially. In that<\/p>\n
LPA 610\/2005                                                page 17 of 27
\n context, the Lordships opined that when the approval was granted by the<\/p>\n
State Government by its letter dated 27.4.1992, the approval related back<\/p>\n
and the revision would be effective from 8.4.1991. The contention that the<\/p>\n
letter dated 27.4.1992 was not an approval of the increase in tariff effective<\/p>\n
from 8.4.1991 was not accepted.\n<\/p>\n<\/p>\n
18.    On a perusal of the aforesaid enunciation of law, we have no<\/p>\n
hesitation in mind that the doctrine of relation back would get squarely<\/p>\n
attracted.     In fact, in Ram Gopal Sharma and others (supra), their<\/p>\n
Lordships approved what has been stated in Tata Iron & Steel Co. Ltd.<\/p>\n
(supra) wherein it has been laid down that if approval is granted, it takes<\/p>\n
effect from the date of the order passed by the employer for which the<\/p>\n
approval was sought. The writ court has clearly and correctly held that<\/p>\n
approval under Section 33(2)(b) was wrongly declined and, hence, the<\/p>\n
respondent – workman would stand dismissed w.e.f. 28.5.1993. The said<\/p>\n
view has also been expressed in the case of Ram Kishan (supra) wherein<\/p>\n
this Court has held as follows:\n<\/p>\n<\/p>\n
               “(g) An order of discharge or dismissal passed under
\n               Section 33(2)(b) is incomplete and inchoate until
\n               approval is granted by the Tribunal in terms of Section
\n               33(2)(b). The relationship of employer and employee is<\/p>\n
LPA 610\/2005                                              page 18 of 27
\n                not effectively terminated by passing the order of
\n               discharge or dismissal until approval thereto is
\n               accorded by the Tribunal in terms of Section 33(2)(b). By
\n               passing the order of discharge or dismissal, de facto
\n               relationship of employer and employee is ended but not
\n               de jure.\n<\/p><\/blockquote>\n
               (h)    If approval is granted by the Tribunal it takes
\n               effect from the date of the order passed by the employer
\n               for which approval was sought.”\n<\/p><\/blockquote>\n
19.    The learned Single Judge, after expressing the opinion as aforesaid,<\/p>\n
has held that when a writ petition is filed challenging an order passed by<\/p>\n
an industrial adjudicator declining approval under Section 33(2)(b) of the<\/p>\n
Act, the writ Court also is obliged to treat the respondent-workman as<\/p>\n
being on duty as per the law laid down by the Constitution Bench of the<\/p>\n
Supreme Court.        Consequently, the respondent-workman would be<\/p>\n
entitled to wages and all other benefits as a result of the refusal by the<\/p>\n
industrial adjudicator to grant approval under Section 33(2)(b) of the Act<\/p>\n
until the order of refusal is stayed by the writ Court and, therefore, the<\/p>\n
writ Court should insist, as a rule, that the employer should pay to the<\/p>\n
workman his dues until such time as the impugned order continues to<\/p>\n
operate. It was further held that when a writ court sets aside the order<\/p>\n
passed by an industrial adjudicator declining approval under Section<\/p>\n
LPA 610\/2005                                               page 19 of 27
\n 33(2)(b) of the Act, it will take effect from the date the employer passed the<\/p>\n
initial order of dismissal or discharge. However, keeping in view that the<\/p>\n
Act is a beneficial legislation, it must not direct the respondent workman<\/p>\n
to refund the amount received by him towards wages and other benefits.<\/p>\n
20.    To arrive at the said conclusion, he has referred to the attitude of the<\/p>\n
DTC in forcing employees to file writ petitions under Article 226 of the<\/p>\n
Constitution, as the DTC did not reinstate the employees despite non-grant<\/p>\n
of approval. Needless to emphasize, a writ petition can be filed for getting<\/p>\n
the benefit as has been held in T.N. State Transport Corporation v.<\/p>\n
Neethivilangan, Kumbakonam,<\/a> (2001) 9 SCC 99.             In the said case, in<\/p>\n
paragraphs 16 and 17, the Apex Court has opined thus:<\/p>\n
               “16. From the conspectus of the views taken in the
\n               decisions referred to above the position is manifest that
\n               while the employer has the discretion to initiate a
\n               departmental enquiry and pass an order of dismissal or
\n               discharge against the workman the order remains in an
\n               inchoate state till the employer obtains order of
\n               approval from the Tribunal. By passing the order of
\n               discharge or dismissal de facto relationship of employer
\n               and employee may be ended but not the de jure
\n               relationship for that could happen only when the
\n               Tribunal accords its approval. The relationship of
\n               employer and employee is not legally terminated till
\n               approval of discharge or dismissal is given by the
\n               Tribunal. In a case where the Tribunal refuses to accord<\/p>\n
LPA 610\/2005                                               page 20 of 27
\n                approval to the action taken by the employer and rejects
\n               the petition filed under section 33(2)(b) of the Act on
\n               merits the employer is bound to treat the employee as
\n               continuing in service and give him all the consequential
\n               benefits. If the employer refuses to grant the benefits to
\n               the employee the latter is entitled to have his right
\n               enforced by filing a petition under Article 226 of the
\n               Constitution. There is no rational basis for holding that
\n               even after the order of dismissal or discharge has been
\n               rendered invalid on the Tribunal’s rejection of the
\n               prayer for approval the workman should suffer the
\n               consequences of such invalid order of dismissal or
\n               discharge till the matter is decided by the Tribunal
\n               again in an industrial dispute. Accepting this contention
\n               would render the bar contained in Section 33(1)
\n               irrelevant. In the present case as noted earlier the
\n               Tribunal on consideration of the matter held that the
\n               employer had failed to establish a prima facie case for
\n               dismissal\/discharge of the workman, and therefore,
\n               dismissed the application filed by the employer on
\n               merits. The inevitable consequence of this would be that
\n               the employer was duty-bound to treat the employee as
\n               continuing in service and pay him his wages for the
\n               period, even though he may be subsequently place
\n               under suspension and an enquiry initiated against him.\n<\/p><\/blockquote>\n
               17.   In the facts and circumstances of the case it is our
\n               view that the High Court committed no illegality in
\n               issuing a direction to the appellant for reinstating the
\n               respondent and paying him the back wages.”\n<\/p><\/blockquote>\n
21.    The core issue that emerges for consideration is whether the learned<\/p>\n
Single Judge is justified in issuing the direction for grant of wages from the<\/p>\n
date of the order, i.e., 26.2.2003 to 13.2.2004, i.e., till the order of stay was<\/p>\n
LPA 610\/2005                                                page 21 of 27
\n passed by this Court. He has so directed on the basis that the employer<\/p>\n
cannot be entitled to recover the wages regard being had to the beneficial<\/p>\n
nature of the legislation. He has also held that the workman is entitled to<\/p>\n
wages and all other benefits as a result of the refusal by the industrial<\/p>\n
adjudicator to grant approval under Section 33(2)(b) of the Act until the<\/p>\n
order of refusal is stayed by the writ court and, therefore, the writ Court<\/p>\n
should insist, as a rule, that the employer should pay to the workman his<\/p>\n
dues until such time as the impugned order continues to operate. On a<\/p>\n
careful scrutiny of the order passed by the learned Single Judge, we are of<\/p>\n
the considered opinion that the directions given or views expressed are, in<\/p>\n
fact, not supported by any statutory mandate. How a writ court would<\/p>\n
pass an interim order or what conditions can be stipulated at that time<\/p>\n
cannot be laid down in a strait jacket formula unless there is a statutory<\/p>\n
command. The learned Single judge, as we perceive, has held that unless<\/p>\n
there is an order of stay, the workman is entitled to get the wages but there<\/p>\n
can be no recovery. If a workman has been paid by the employer, possibly<\/p>\n
there may not be a direction for refund or recovery regard being had to<\/p>\n
several aspects including the beneficent nature of the legislation. But to<\/p>\n
hold and opine that the workman will be entitled to the wages as a matter<\/p>\n
LPA 610\/2005                                             page 22 of 27
\n of legal right despite quashing the order declining to approve the order of<\/p>\n
dismissal by the High Court is not acceptable. It is a command to do<\/p>\n
something which the law does not warrant because the order of non-<\/p>\n
approval becomes extinct when the writ court finds that the same has been<\/p>\n
unjustifiably denied. The doctrine of relation back gets squarely attracted.<\/p>\n
It operates in full force and applies to the fullest extent.<\/p>\n
22.     It is seemly to state here that the non-realization of the amount paid<\/p>\n
to the workman is in the sphere of equity but the issue of a mandatory<\/p>\n
direction or a command is realization or fructification of a right. It is well<\/p>\n
settled in law that fair play and equity must yield to the provisions of the<\/p>\n
statute.   In this context we may profitably reproduce a passage from<\/p>\n
Madamanchi Ramappa and another v. Muthaluru Bojappa, AIR 1963 SC<\/p>\n
1633:\n<\/p>\n
               “12. ….It may be that in some cases, the High Court
\n               dealing with the second appeal is inclined to take the
\n               view that what it regards to be justice or equity of the
\n               case has not been served by the findings of fact
\n               recorded by Courts of fact; but on such occasions it is
\n               necessary to remember that what is administered in
\n               Courts is justice according to law and considerations of
\n               fair play and equity however important they may be,
\n               must yield to clear and express provisions of the
\n               law….”\n<\/p><\/blockquote>\n
LPA 610\/2005                                                   page 23 of 27\n<\/p><\/blockquote>\n
 23.    In this context, we may fruitfully refer to a three-Judge Bench<\/p>\n
decision in Roshanlal Kuthalia & Ors. v. R.B. Mohan Singh Oberoi,<\/a> (1975)<\/p>\n
4 SCC 628 wherein it has been held thus:\n<\/p><\/blockquote>\n
               “29.   …..\n<\/p><\/blockquote>\n
               Certainly when law speaks in positive terms, equity
\n               may not be invoked against it; but while applying the
\n               law the Court can and must ameliorate unwitting
\n               rigours inflicted by legalisms, where there is room for
\n               play, by the use of equity…..”\n<\/p><\/blockquote>\n
24.    In Council for Indian School Certificate Examination v. Isha Mittal<\/p>\n
& Anr.,<\/a> (2000) 7 SCC 521, the Apex Court has stated thus:\n<\/p><\/blockquote>\n
               “4. It is the obligation of the High Court to decide the
\n               matters before it in accordance with law. If the law was,
\n               as the High Court observes in the passage quoted
\n               above, in favour of the appellant before it, it was
\n               obliged to make an order in favour of the appellant.
\n               Considerations of equity cannot prevail and do not
\n               permit a High Court to pass an order contrary to the
\n               law.”\n<\/p><\/blockquote>\n<\/blockquote>\n
25.    In P.M. Latha & Anr. v. State of Kerala & Ors.,<\/a> (2003) 3 SCC 541,<\/p>\n
their Lordships have held thus:\n<\/p><\/blockquote>\n
LPA 610\/2005                                               page 24 of 27
\n                “13. Equity and law are twin brothers and law should
\n               be applied and interpreted equitably but equity cannot
\n               override written or settled law……”\n<\/p><\/blockquote>\n
26.    In Raghunath Rai Bareja & Anr. v. Punjab National Bank & Ors.,<\/a><\/p>\n
(2007) 2 SCC 230, their Lordships have expressed thus:<\/p>\n
               29.   ….it is well settled that when there is a conflict
\n               between law and equity, it is the law which has to
\n               prevail, in accordance with the Latin maxim “dura lex
\n               sed lex”, which means “the law is hard, but it is the
\n               law”. Equity can only supplement the law, but it cannot
\n               supplant or override it.\n<\/p><\/blockquote>\n
27.    In B. Premanand & Ors. v. Mohan Koikal & Ors.,<\/a> 2011 (3) Scale 598,<\/p>\n
it has been ruled thus:\n<\/p>\n<\/p>\n
               “13. ….No doubt, equity may be in favour of the
\n               respondents because they were selected earlier, but as
\n               observed earlier, if there is a conflict between equity
\n               and the law, it is the law which must prevail…”\n<\/p><\/blockquote>\n
28.    In view of the aforesaid enunciation of law, the equity cannot weigh<\/p>\n
in favour of a workman when the order refusing to grant approval passed<\/p>\n
by the industrial adjudicator is set aside in exercise of inherent jurisdiction<\/p>\n
by the writ court. While exercising the equitable jurisdiction, that amount<\/p>\n
LPA 610\/2005                                               page 25 of 27
\n paid to the workman may not be recovered or he should not be compelled<\/p>\n
to refund the same, but issuing of a direction to pay him the wages inspite<\/p>\n
of the order of disapproval being axed by the High Court, which is a<\/p>\n
command and the said direction is in the realm of law, as a result of which<\/p>\n
the equitable consideration would come in conflict with law. Thus, such a<\/p>\n
direction, not being sanctioned by the authority of law, cannot be issued.<\/p>\n
29.    The direction issued by the learned Single Judge can be viewed from<\/p>\n
another angle. On a proper appreciation of the directions issued by the<\/p>\n
learned Single Judge in his conclusion in paragraph 3, the same, in our<\/p>\n
opinion, is in the nature of an introduction of a legislative mandate. We<\/p>\n
are disposed to think so as there is no provision in the Act to cover such a<\/p>\n
situation.     In this context, we may refer with profit to the decision in<\/p>\n
Chandigarh Administration and others v. Manpreet Singh and others<\/a>,<\/p>\n
(1992) 1 SCC 380 wherein the Apex Court has held that the High Court can<\/p>\n
strike down an offending rule on stated ground of invalidity and direct the<\/p>\n
authority to re-frame it and act accordingly but cannot itself re-frame it<\/p>\n
and issue directions.\n<\/p>\n<\/p>\n
LPA 610\/2005                                             page 26 of 27\n<\/p>\n
 30.    In Municipal Committee, Patiala v. Model Town Residents Assn.<\/p>\n
and others<\/a>, (2007) 8 SCC 669, it has been held thus:<\/p>\n
               “27. It is so well settled and needs no restatement at
\n               our hands that the legislature is supreme in its own
\n               sphere under the Constitution subject to the limitations
\n               provided for in the Constitution itself. It is for the
\n               legislature to decide as to when and in what respect and
\n               of what subject-matter the laws are to be made. It is for
\n               the legislature to decide as to the nature of operation of
\n               the statutes.”\n<\/p><\/blockquote>\n
31.    In view of our aforesaid analysis, we are unable to concur with the<\/p>\n
view expressed by the learned Single Judge that there should be payment<\/p>\n
of amount from 26th February, 2003 to 13th February, 2004 and further, with<\/p>\n
due respect, we are also not in agreement with the conclusion No.3 arrived<\/p>\n
at by the learned Single Judge and, accordingly, both are set aside.<\/p>\n
32.    Consequently, keeping in view the restricted and limited prayer<\/p>\n
made by the appellant – DTC, the appeal is allowed. There shall be no<\/p>\n
order as to costs.<\/p>\n
\n\n                                                     CHIEF JUSTICE\n\n\n\nAPRIL 4, 2011                                        SANJIV KHANNA, J.\ndk\n\nLPA 610\/2005                                                page 27 of 27\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Delhi Transport Corporation vs Shri Ramesh Chander on 4 April, 2011 Author: Dipak Misra,Chief Justice * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : March 15, 2011 Judgment Delivered on: April 4, 2011 + LPA No. 610 Of 2005 Delhi Transport Corporation ….. Appellant Through: Mr.Sarfaraj […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-87554","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nDelhi Transport Corporation vs Shri Ramesh Chander on 4 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/delhi-transport-corporation-vs-shri-ramesh-chander-on-4-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Delhi Transport Corporation vs Shri Ramesh Chander on 4 April, 2011 - 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