Delhi Transport Corporation vs Chander Kumar

V.K. Shali, J.—The petitioner/DTC by virtue of the present writ petition has challenged the judgment/order dated 16th December, 2002 passed by Mr. P.S. Teji, learned Presiding Officer, Labour Court-II, Karkardooma Courts, Delhi in ID No. 590/1993 in the case titled Delhi Transport Corporation v. Chander Kumar. By virtue of the aforesaid impugned order the Labour Court has rejected/dismissed the application of the petitioner/management for grant of approval u/s 33(2)(b) of the Industrial Disputes Act, 1947.

That briefly stated the facts leading to the filing of the present case are that the respondent/workman is alleged to have unauthorizedly absented from duty from 08.05.1993 to 17.05.1993 despite the fact that he was asked to attend the duty or report to the medical board of the DTC. On account of this, disciplinary proceedings were initiated against the respondent/workman and by virtue of the standing orders of the DTC, the respondent/workman was removed from service and full one month''s wages were remitted to him by way of money order. The money order was not received back by the petitioner/management. The petitioner/management filed an application for grant of approval with the learned Labour Court u/s 33(2)(b) of the Industrial Disputes Act, 1947 seeking permission to dispense with the services of the respondent/workman.

The respondent/workman in his reply denied the allegations made against the him. The following preliminary issue regarding the validity of the enquiry was framed on 10th February, 1995.

Whether the applicant held a legal and valid enquiry against the respondent according to the principles of natural justice?

On 31st July, 2002 the validity of enquiry was upheld and the enquiry was decided against the respondent/workman. Issues framed on the pleadings of the parties were as under:

(i) Whether the respondent has committed misconduct?

(ii) Whether in compliance of Section 33(2)(B) of the Industrial Disputes Act, 1947 one month salary remitted to respondent?

(iii) Relief.

So far as the issue No. 2 regarding compliance of Section 33(2)(b) of the Industrial Disputes Act, 1947 of having sent one month salary to the respondent/workman is concerned, this was decided against the respondent/workman. As regards issue No. 1, the learned Tribunal was of the opinion that availing of leave without pay does not amount to misconduct as per the standing orders of the DTC. Since the issue No. 1 itself was decided against the petitioner/management the other two issues became in-consequential and accordingly learned Industrial Tribunal refused to grant of approval to the petitioner/management and dismissed their application on 16th December, 2002.

The petitioner/management feeling aggrieved by the aforesaid rejection of the approval u/s 33(2)(b) of the Industrial Disputes Act, 1947 has preferred the present writ petition. The main challenge to the writ petition is that the learned Tribunal has grossly erred in not referring to the earlier adjudication by the learned Labour Court in ID No. 144/1995 in the case titled The Workman Sh. Chander Kumar v. The Management of Delhi Transport Corporation wherein the reference was made by the Secretary (Labour), Government of NCT of Delhi about the industrial dispute which read as under:

Whether the removal of Sh. Chander Kumar from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?

On the basis of the aforesaid reference which was made by the learned Labour Court-VII an issue was framed whether the domestic enquiry was not conducted according to the principle of natural justice and whether it was not fair or valid.

Despite the fact that several opportunities were given to the respondent/workman to adduce the evidence in support of his case in order to prove this issue, no one appeared on behalf of the respondent/workman before the Ld. Labour Court, as a consequence of which it was held by the Learned labour Court that the respondent/workman has not adduced any evidence to prove the fact that his services were illegally terminated by the petitioner/management. Accordingly, award was passed on 16th December, 2002.

I have heard the learned Counsel for the petitioner but did not have the advantage of hearing the respondent/workman. The order sheet shows that despite the fact that the respondent/workman was served but he had not appeared and accordingly, vide order dated 4th September, 2008 he was proceeded ex-parte.

I have perused the record. The respondent/workman having chosen to get a reference made to the Labour Court-VII with regard to the alleged illegal and unjustified termination of his own, and yet he had not appeared before the learned Labour Court to prove his termination was illegal and unjustified. The learned Labour Court had accordingly, rightly dismissed the claim of the respondent/workman. In this very matter only an issue with regard to the fairness of the enquiry was framed in respect of which also the respondent/workman did not adduce any evidence. This ID was decided first and thereby upheld the legality and validity of not only the enquiry but also the termination of the respondent/workman. The petitioner/management ought not to have pursued their petition u/s 33(2)(b) of the Industrial Disputes Act, 1947. But having chosen to continue with the same they unnecessarily exposed themselves to a finding which is contrary to the record. Rejection of grant of approval by the learned Industrial Tribunal vide order dated 16th December, 2002 is totally unsustainable in the light of the fact that the respondent/workman has not challenged the judgment/order of the learned Labour Court-VII with regard to the legality of his termination vide order dated 16th December, 2002 is directly in conflict with the earlier findings of the judgment/order of the learned Labour Court-VII. Therefore, there is no option but allow the petition filed by the petitioner/management and set aside the order dated 16th December, 2002 dismissing the petition of the petitioner/management to grant approval u/s 33(2)(b) of the Industrial Disputes Act, 1947. Accordingly, the said order dated 16th December, 2002 is set aside and the petitioner/management is granted approval for the termination of service of the respondent/workman. With these observations the writ petition is allowed.

No order as to costs.