Banwari Lal vs The Managament of Moolchand Kharaitiram Hospital

Rajiv Sahai Endlaw, J.—The writ petition impugns the award dated 8th April, 2008 of the Labour Court deciding the preliminary issue framed as to the maintainability of the industrial dispute and holding that approval u/s 33(2)(b) of the I.D. Act having been granted to the Respondent employer of its action of terminating the services of the Petitioner for misconduct, the dispute raised by the Petitioner to be barred on the principle of res judicata.

Notice of the writ petition was issued and a counter affidavit has been handed over by the counsel for the Respondent in the Court and taken on record.

Being prima facie of the opinion that the matter needs to be remanded to the Labour Court, the writ petition has been taken up for hearing out of turn, at the show cause notice stage only.

I have on consideration of the case law on the subject, held in DTC v. Shyam Lal ILR (2010) Del 431 that the scope of a proceeding u/s 33(2)(b) is entirely different from a reference on a dispute u/s 10 of the Act and in DTC v. Rishi Prakash (2010) IV AD (Del) 399 & DTC v. Nihal Singh 169 (2010) DLT 727 held that findings u/s 33(2)(b) cannot operate as res judicata in a reference u/s 10. Recently in judgment dated 18th April, 2011 in W.P.(C) No. 10800/2005 titled DTC v. Sudan Pal, the issue was revisited in another context. The counsel for the Petitioner has also in this regard relied upon paragraphs 24 to 26 of The Punjab National Bank Ltd. Vs. Its Workmen,

It has as such been enquired from the counsel for the Respondent employer as to how the order impugned in this writ petition can be sustained.

The counsel for the Respondent employer has contended that pursuant to the amendment in the Industrial Disputes Rules as applicable to Delhi, permitting an individual workman also to file a dispute with the Labour Court without requiring a reference from the appropriate Government, the position in law has changed. He also in this regard relies upon para 14 of the Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, . His contention is that though preliminary issue as to the validity of the inquiry preceding termination, was in proceedings u/s 33(2)(b) held against the Respondent employer but the Respondent employer had subsequently proved the misconduct before the Industrial Tribunal and the Industrial Tribunal upon being satisfied that the workman had committed misconduct and the punishment of termination was proportionate to the misconduct granted approval u/s 33(2)(b). He contends that the same question cannot be agitated again in the Labour Court and the Labour Court cannot sit in appeal over the decision of the Industrial Tribunal on the application u/s 33(2)(b).

I have also in Shyam Lal (supra) observed that the Industrial Adjudicators appear to have, over the years, lost the distinction between the two proceedings and the difference having been blurred. However the fact remains that the scope of enquiry in a proceeding u/s 33(2)(b) is only to determine whether the action of which approval is being sought, is not to punish or to prejudice the workman in the pending dispute. The Industrial Adjudicator in a proceeding u/s 33(2)(b) is not required to go into the merits of the misconduct. The counsel for the Petitioner is correct in law in contending that the view even if formed as to misconduct in a proceeding u/s 33(2)(b), is at best a prima facie view.

Once it is held that the Industrial Tribunal in a proceeding u/s 33(2)(b) has no jurisdiction to return a finding on the merits of the dispute, the finding if any of the Industrial Tribunal in such proceedings, would be without jurisdiction and cannot be res judicata in a subsequent appropriately constituted proceedings before an appropriate fora. Reference in this regard may be made to:

(a). Shankarlal Patwari v. Hiralal Murarka AIR 1950 PC 80.

(b). Mangharam Chuharmal Vs. B.C. Patel and Others,

(c). Ram Kishan v. Bharat Bhushan 1979 FLR 194.

(d). Union of India (UOI) and Another Vs. Ranchi Municipal Corporation, Ranchi and Others,

(e). Rajinder Parshad Jain Vs. Bal Gopal Das,

(f). Savitri Devi Vs. Fashion Linkers and Others,

The Apex Court in Jaipur Zila Saharaki Bhoomi Vikas Bank Ltd. (supra) was not faced with the aforesaid question. A stray observation in the judgment not concerned with the legal issue falling for adjudication, cannot be relied upon out of context. Even otherwise, all that has been observed in para 14, is that the Industrial Tribunal in Section 33(2)(b) proceeding is to examine the bona fide of the action of which approval is sought and as to whether it was by way of victimization or unfair labour practice. The said judgment cannot be read as overruling the earlier judgments expressly on the difference in nature and character of the two proceedings.

As far as the two judgments in Delhi Transport Corporation Vs. Surinder Pal, and J.S. Joseph Vs. The Commercial Manager, AIR India referred to by the Labour Court are concerned, both judgments of Single Judges of this Court stand set aside, in Surinder Pal Vs. Management of Delhi Transport Corporation, and in judgment dated 16th December, 2008 in LPA No. 707/2008 titled J.S. Joseph v. The Commercial Manager, Air India respectively.

The order is accordingly set aside; resultantly the dispute raised by the Petitioner is maintainable before the Labour Court. The parties are directed to appear before the Labour Court concerned on 24th May, 2011. Since considerable time has been lost, the Labour Court is requested to deal with the matter expeditiously.

No order as to costs.