Termination without prior Tribunal approval is void and entitles the workman to full back wages and reinstatement.

JUDGMENT

Rajiv Shakdher, J.: (ORAL)

[Court hearing convened via video-conferencing on account of COVID-19]

1. This is an appeal directed against the judgement dated 31.10.2019, passed by the learned Single Judge, in W.P.(C.) No. 2542/2007.

1.1. The appellant before us is the writ petitioner i.e., the Delhi Transport Corporation.

2. Mr. Sarfaraz Khan, who appears on behalf of the appellant/DTC, says that the learned Single Judge, via the impugned judgement, has sustained the award dated 21.03.2006, passed by the Industrial Tribunal, concerning ID No.15/2005, without having regard to the fact that, the order of termination qua the respondent/workman was passed on 14.07.1998 and the respondent/workman moved the Industrial Tribunal only in 2005 by way of an application, under Section 33A of the Industrial Disputes Act, 1947 (in short "the I.D. Act").

2.1. In sum, it is Mr. Khan's submission that, the impugned award [which has been sustained by the learned Single Judge] not only reinstates the respondent/workman but has also granted full back wages and continuity of service, despite respondent/workman having not approached the Industrial Tribunal for nearly 7 years, after the order of termination was passed qua him in 1998.

3. It is, however, not disputed by Mr. Khan that, when the order of termination was passed by the appellant/DTC, on 14.07.1998, an industrial dispute, between the parties herein, was pending before the Industrial Tribunal, which was registered as ID No.52/1997.

3.1. Mr. Khan also does not dispute the fact that, no application was preferred by the appellant/DTC before the Industrial Tribunal for seeking approval, before passing the order of termination dated 14.07.1998, in terms of Section 33 (2)(b) of the I.D. Act.

4. It is a matter of record that, the respondent/workman, having become aware of the order of termination, passed by the appellant, moved an application before the Industrial Tribunal, under Section 33A of the I.D. Act, which led to the impugned award dated 21.03.2006, being passed.

5. Both, the Industrial Tribunal as well as the learned Single Judge have relied upon the judgment of the Constitution Bench of the Supreme Court rendered in `Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma & Ors., (2002) 2 SCC 244' to reach the conclusion that, the order of termination dated 14.07.1998, passed by the appellant/DTC, was void ab initio/non-est in the eyes of law as it was passed without the approval of the Tribunal even while the dispute obtaining between parties was pending before it. It is based on this rationale that, the Industrial Tribunal has directed not only the reinstatement of the respondent/workman, but also ordered, payment of full back wages, and continuity in service.

6. We may note that, the Industrial Tribunal had indicated, in its award dated 23.03.2006, that the enquiry held qua the respondent/workman, before ordering his termination from service, was in order. However, having regard to the fact that, no approval was taken by the Tribunal, as required under Section 33 (2)(b) of the I.D. Act, it concluded that the order of termination dated 14.07.1998, could not be sustained. For this purpose, it would be relevant to extract the relevant portion from the judgement of the Supreme Court in the Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. case (supra), as the same, according to us, is apposite in this case: -

"15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 3