AI Structured Summary
Not yet generated for this judgment
Judgment
Rajiv Sahai Endlaw
CM No. 20141/2012 in LPA No. 791/2012
CM No. 19918/2012 in LPA No. 780/2012 (both for exemption)
Allowed, subject to just exceptions.
The applications stand disposed of.
CM No. 20142/2012 (for condonation of 67 days delay in filing the appeal) in LPA No. 791/2012 & CM No. 19920/2012 (for condonation of 21 days delay in refiling) in LPA No. 780/2012
For the reasons stated in these applications, the delay of 67 days in filing LPA No. 791/2012 and the delay of 21 days in re-filing LPA No. 780/2012 is condoned.
The applications stand disposed of.
LPA No. 780/2012 & CM No. 19919/2012 (for stay) & LPA No. 791/2012.
These intra court appeals impugn the common judgment dated 16th August 2012 of the learned Single Judge in W.P.(C) No. 195/2006 and W.P.(C) No. 351/2006 preferred by the respondent/Delhi Transport Corporation (DTC). The appellant was employed as a conductor with the respondent DTC since 23rd February, 1985. He was on 14th August, 1992 charged with, (i) having not issued tickets after collecting due fare; (ii) issuing tickets of lessor denomination after collecting due fare; and, (iii) of being in possession of excess cash. A departmental enquiry was held in which one of the passengers was examined, who deposed in favour of the appellant. The Enquiry Officer however found the appellant guilty of the charge and the Disciplinary Authority of the respondent/DTC after issuing a show cause notice to the appellant, on 8th October, 1993 imposed the punishment of removal from service on the appellant. However, since at that time a dispute between DTC and its workmen was pending consideration, application u/s 33(2)(b) of the Industrial Disputes Act, 1947 was necessitated and filed.
It appears that the said application u/s 33(2)(b) remained pending for long and which led the appellant to, in or about the year 1997, raise an industrial dispute which was also referred for adjudication.
The Industrial Adjudicator before whom the application u/s 33(2)(b) was pending consideration, framed an issue as to the validity of the departmental enquiry held by the respondent DTC and vide order dated 9th September, 2002 decided the said issue against the respondent DTC. The Industrial Adjudicator thereafter gave opportunity to the respondent DTC to prove misconduct. The respondent DTC however only proved the proceedings of the Enquiry Officer and his report as evidence and did not lead any other evidence. The Industrial Adjudicator, holding the same to be no evidence of misconduct and the respondent DTC having failed to prove the misconduct, vide order dated 27th May, 2003 rejected the application u/s 33(2)(b).
As far as the industrial disputes raised by the appellant workman was concerned, the Industrial Adjudicator vide Award dated 10th September, 2004, held the same to be infructuous, since the application u/s 33(2)(b) had been rejected and relying on Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, held the appellant to be continuing in service.
The respondent DTC filed W.P.(C) No. 195/2006 impugning the orders on the validity of enquiry and of dismissal of the application u/s 33(2)(b). W.P.(C) No. 351/2006 was filed by the respondent DTC impugning the Award in the industrial dispute.
The learned Single Judge has disposed of both the aforesaid petitions vide common judgment dated 16th August, 2012. As far as the dismissal by the Industrial Adjudicator of the application of the respondent DTC u/s 33(2)(b) is concerned, the learned Single Judge, with reference to State of Haryana and Another Vs. Rattan Singh, and Delhi Transport Corporation Vs. Shree Kumar and Another, held that it was not necessary for the respondent DTC to examine the passengers in a domestic enquiry and thus set aside the order of the Industrial Adjudicator of dismissal of the application u/s 33(2)(b).
Counsel for appellant, in LPA No. 780/2012 preferred against the judgment of the learned Single Judge on Section 33(2)(b) has argued that the order of the Industrial Adjudicator on the validity of the enquiry was not even under challenge. The said submission is however found to be factually incorrect inasmuch as a perusal of the prayer paragraph in the writ petition shows the same to be seeking not only setting aside the order dated 27th May, 2003 of rejection of the application u/s 33(2)(b) but also of the order dated 9th September, 2002 holding the departmental enquiry to be bad.
Counsel for the appellant has next contended that the learned Single Judge has wrongly applied the judgment in Rattan Singh & Shree Kumar (supra). He is, however, unable to make good the said submission.
We are even otherwise of the opinion that the procedure adopted by the Industrial Adjudicator in the application u/s 33(2)(b) and the orders holding the departmental enquiry to be bad and ultimately of rejection of the said application are bad in law. The Industrial Adjudicator proceeded to decide an application u/s 33(2)(b) as an industrial dispute and which was not the scope thereof. All that an Industrial Adjudicator in an application u/s 33(2)(b) is required to determine is whether opportunity of hearing before passing the order of punishment has been given and whether the imposition of punishment is vindictive, to settle scores in the industrial disputes already pending. Reference in this regard can be made to Delhi Transport Corporation Vs. Shyam Lal, pronounced by one of us. Counsel for the appellant is unable to show even a plea in the proceedings u/s 33(2)(b), of the order of punishment imposed being vindictive, to settle scores in the industrial dispute which had necessitated the filing of the application u/s 33(2)(b). We may also notice that the Industrial Adjudicator in the order dated 9th September, 2002 has held the departmental enquiry to be bad, not for the reason of proper opportunity of hearing having not been granted but only for the reason of the Enquiry Officer having not correctly appreciated the evidence led before him.
We are therefore of the view that the Industrial Adjudicator was clearly in error in rejecting the application u/s 33(2)(b) and the said order of the Industrial Adjudicator has correctly been set aside by the learned Single Judge and thus calls for no interference in this appeal.
Accordingly, LPA No. 780/2012 is dismissed.
However as far as the writ petition filed by the respondent DTC impugning the Award in the industrial dispute raised by the appellant was concerned, we are of the prima facie view that the learned Single Judge, after allowing the application u/s 33(2)(b), could not have deprived the appellant workman of hearing in the industrial dispute which had already been raised, establishing that his termination was wrongful. We are prima facie of the view that on the application u/s 33(2)(b) being allowed by the learned Single Judge, the learned Single Judge ought to have granted opportunity to the appellant to proceed with the industrial disputes in which no evidence had been led and which had been disposed of by the Industrial Adjudicator as infructuous owing to the order of rejection by the Industrial Adjudicator of the application u/s 33(2)(b). Accordingly, issue notice to the respondent DTC of LPA 791/2012, returnable on 4th February, 2013.