DIPAK MISRA, CJ

In this intra-Court appeal, the warrantable ness of the order dated 14.9.2004 passed by the learned Single Judge in CW No.1998/2004 is called in question.

2. Filtering the unnecessary details, the facts which are essential to be stated are that the appellant, Delhi Transport Corporation (for short the DTC), filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for brevity the Act) before the Industrial Tribunal-II in O.P. No.389/93 seeking approval of the action of removal of the respondent – workman from service. The tribunal framed a preliminary issue on 2.9.1996 to the effect whether a legal and valid enquiry had been held against the workman and, by order dated 7.8.2002, decided the issue against the DTC. Thereafter, the tribunal framed three issues and eventually came to hold that the absence of the respondent – workman did not amount to misconduct and, therefore, declined to grant approval to the management DTC under Section 33(2)(b) of the Act vide order dated 26.2.2003.

3. Being dissatisfied with the aforesaid order, the DTC invoked the jurisdiction of this Court and the learned Single Judge, placing reliance on the decision rendered in Delhi Transport Corporation v. Sardar Singh, 2004 (6) SCALE 613, came to hold as follows:

“15. In the present case there is no dispute that the respondent workman did not obtain any proper sanction for his leave. The mere submission of a leave application or a medical certificate is of no consequence unless the leave is duly approved or sanctioned.

16. In view of the decision of the Supreme Court referred to above, since the learned Tribunal has refused to grant approval only on the ground that the period of absence was treated as leave without pay which did not amount to misconduct, the absence being undisputed, there is no option but to set aside the order passed and to accord approval to the application filed by the Petitioner under Section 33(2)(b) of the Act.”

4. After so holding, the learned Single Judge posed the question what relief should be granted to the DTC. To adjudicate the said facet, the learned Single Judge dwelled upon the issue relating to the status enjoyed by the respondent – workman during the intervening period. The writ court referred to the decision in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and others, (2002) 2 SCC 244 and opined that when approval is granted, it relates back to the date of the order of dismissal or discharge and if approval is not granted, it would be deemed as if the order of dismissal or discharge had never been passed and, therefore, the employee is deemed to have continued in service entitling him to all the benefits available without the need for passing a separate or specific order for his reinstatement. The learned Single Judge has further opined that the workman has only an accrued right to get his wages and other benefits and the right gets crystallized or vested in the workman when the approval application is rejected. After so stating, the learned Single Judge referred to the decisions in Ram Kishan v. Lt. Governor, National Capital Territory of Delhi & Anr., 2001 VII AD (Delhi) 949, Rajender Singh v. Delhi Transport Corporation & Anr., 98 (2002) DLT 706 (DB), Randhir Singh v. Delhi Transport Corporation & Anr., 2002 (62) DRJ 536, Rajinder Singh v. DTC & Ors., 104 (2003) DLT 982 and Roshan Singh v. Delhi Transport Corporation, 105 (2003) DLT 110 to highlight that the DTC, despite facing rejection orders under Section 33(2)(b) of the Act quite often, did not reinstate the workman as a consequence of which the employees were compelled to file writ petitions for reinstatement which was unnecessary.

5. After taking note of the said decisions, the learned Single Judge adverted to the facts of the case at hand. He has noted that the order of dismissal was passed on 28.5.1993. In terms of the decision rendered by the Apex Court in Ram Gopal Sharma