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2007 Supreme(Del) 2323
High Court of Delhi
THE HONOURABLE MS. JUSTICE HIMA KOHLI
DTC & Another
Versus
Pradeep Kumar & Another
Writ Petition (C) No.507 of 2006 WP (C) No.5724 of 2005
Decided On : 08-10-2007
The main legal point established is that rejection of the approval application under Section 33(2)(b) of the Industrial Disputes Act deems the workman to be in service, entitling them to all benefits available.
Headnote:
Industrial Disputes Act - Approval Application under Section 33(2)(b) - Summary of Acts and Sections: Industrial Disputes Act, 1947 - Section 33(2)(b), Proviso - The judgment discusses the legal provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 and its interpretation in the context of the employer's obligation to seek approval for termination of an employee. The court's decision is influenced by the interpretation of the requirement for immediate intimation of arrest by the employee to the employer as per the Office Order and Standing Order.
Fact of the Case:
The case involves a dispute between the Delhi Transport Corporation (DTC) and a workman who was terminated from service. The DTC sought approval for the termination under Section 33(2)(b) of the Industrial Disputes Act, 1947. The workman filed a petition seeking reinstatement and full back wages.
Finding of the Court:
The court found that the DTC failed to prove the misconduct committed by the workman, as the evidence did not support the allegations. The court also held that the workman should be deemed to be in service from the date of termination due to the rejection of the approval application.
Issues: The issues revolved around the alleged misconduct by the workman, the requirement for immediate intimation of arrest to the employer, and the legal consequences of the rejection of the approval application.
Ratio Decidendi: The court's decision was based on the failure of the DTC to prove the misconduct and the legal principle that rejection of the approval application deems the workman to be in service. The court also emphasized the importance of not interfering with factual findings unless there is an error of jurisdiction or law.
Final Decision: The court dismissed the DTC's petition and allowed the workman's petition, deeming the workman to be in service from the date of termination.
HIMA KOHLI, J.
By this common judgment, this Court proposes to dispose of both the writ petitions, being W.P. (C) No. 507/2006 filed by the Delhi Transport Corporation (DTC) and W.P.
(C) No. 5724/2005 filed by the workman as both arise out of the same impugned order dated 2.9.2002, by which the Industrial Tribunal (hereinafter referred to as ‘the Tribunal’) dismissed the approval application filed by the DTC under Section 33(2)(b) of the Industrial Disputes ACT, 1947(hereinafter referred to as ‘the Act’). While DTC by way of its petition has sought for quashing and setting aside of the impugned award and for holding the DTC to be entitled to the approval sought by it under Section 33(2)(b) of the Act, the workman in his petition has prayed for directions to be issued to the DTC to reinstate him in service and pay him full back wages from the date of his termination, till the date of his reinstatement, in view of the rejection order dated 2.9.2002, passed by the Tribunal.
2. For the sake of convenience, facts of W.P.(C) No. 507/2006 are being taken note of. The respondent workman was employed as a Driver with the petitioner DTC. On 11.12.1991, the police arrested him on charges of kidnapping and rape of a girl. On 17.1.1992, the Depot Manager of Shahadra Deport-II issued a charge sheet to the respondent workman on the ground of concealing the fact of his arrest from the employer, i.e., the petitioner DTC, which amounted to misconduct within the meaning of paras 19(f), (k) and (m) of the standing orders of the D.R.T.C. An oral enquiry was conducted into the charges and the respondent workman was found guilty and removed from service on 19.10.1992. Immediately thereupon, the petitioner DTC filed an approval petition before the Tribunal under Section 33(2)(b) of the Act seeking approval of its action of removing the respondent workman from service. In the said proceedings, a preliminary issue was framed on 10.5.1993 to decide whether the enquiry conducted by the petitioner DTC against the respondent workman was legal and valid and in accordance with the principles of natural justice.
3. In his reply to the said petition, the respondent workman denied that he had committed the said misconduct and stated that he had intimated the petitioner DTC of his arrest at the earliest possible opportunity available to him after his release on bail, i.e. on 6.1.1992. He stated that the enquiry was vitiated since he was not afforded reasonable opportunity to defend himself and the enquiry officer ignored his contentions. Thereafter, evidence of the witnesses of both the parties was recorded, and on the basis of the evidence recorded as also the arguments of both the parties, vide order dated 6.9.2001, the Tribunal observed that there was no reason to hold that the enquiry officer did not follow the principles of natural justice or did not give ample opportunity to the respondent workman to defend himself. However, after going through the report of the enquiry officer and the relevant Office Order and the Standing Orders, the Tribunal went on to hold that since in any case the respondent workman did inform the petitioner DTC about his arrest, before the letter of the police was received in the depot and the reporter submitted his report to the Depot Manager, therefore the report of the enquiry officer was held to be perverse.
4. After the preliminary issue was decided as above, the petitioner DTC made a request to lead additional evidence to establish the charges, which request was granted and the following additional issues were framed by the Tribunal :
“1. Whether the respondent committed the misconduct as alleged against him’
2. Whether the full one months wages was remitted to the respondent as per provision of Section 33(2) (b) of the I.D. Act?
3. Relief.?
5. In the impugned award dated 2.9.2002, the Tribunal recorded that nothing had been stated by the witness of the petitioner DTC in his affidavit about the alleged misconduc
