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Judgment
Sanjiv Khanna, J.
CM No. 13264/2010
For the reasons contained in the application, the delay in filing the appeal is condoned. The application stands disposed of accordingly.
LPA No. 508/2010
By the impugned order and judgment dated 5th April, 2010, learned Single Judge noticed the contradictory findings recorded in the two separate proceedings u/s 33(2)(b) and Section 10 of the Industrial Disputes Act, 1947(Act for short). The Industrial Tribunal in its order dated 4th July, 2001, in the application u/s 33(2)(b), had held that the enquiry officer had not provided opportunity to the workman to establish his case. The workman was denied opportunity to establish his defence by way of cross-examination of the witnesses of the management and also from the service record maintained by the management. The preliminary issue framed was thus decided against the Management DTC and in favour of the workman. However by the order dated 31st August, 2001, proceedings u/s 10 of the Act were decided in favour of the Management DTC and against the workman. It was held that the termination of the service of the workman was fair, proper and valid.
The award/order of the Labour Court u/s 10 of the Act was not challenged by the workman and has become final. DTC on the other hand, had challenged the preliminary findings u/s 33(2)(b) of the Act in Writ Petition No. 9632/2003. The said writ petition has been allowed by the impugned order dated 5th April, 2010. Learned Single Judge has noticed that the workman had remained absent for 148 days and had applied for leave only for 76 days. It was observed that the Tribunal while passing the order dated 4th July, 2001 in the application u/s 33(2)(b) of the Act had committed errors. It has been observed by the learned Single Judge:
The Tribunal has also not given any reasoning as to why on the ground of absence without intimation for the other 72 days the dismissal of the Petitioner under Clause 4(ii) & 19(h) (supra) of the Standing Orders was not made out. It is significant that the said orders make absence for more than 10 days liable for termination. Here the absence without intimation was admittedly for 72 days. Thus irrespective of the non communication of the rejection of leave application for 76 days, the termination of service of the Respondent for the absence of the other 72 days was in any case made out.
The order of the Tribunal rejecting the application u/s 33(2)(b) is thus found to be perverse on this ground alone and is liable to be quashed / set aside.
It has been held that the ratio and legal finding of the Tribunal were contrary to the judgment of the Hon''ble Supreme Court in Delhi Transport Corporation Vs. Sardar Singh, . Several other aspects were also considered by the learned Single Judge.
The workman has expired and his legal heirs have preferred the present appeal impugning the order dated 5th April, 2010.
On 28th October, 2010, the following order was passed:
LPA 508/2010
Learned Counsel for the Appellant prays for some time to challenge the award passed by the Labour Court against the workman on a reference being made by the competent authority. Matter be listed on 10th February, 2011.
Learned Counsel for the Appellant has stated before us that he has not received any instructions inspite of communication sent to and received by the legal heirs of the workman.
Keeping in view the aforesaid, we are not inclined to proceed further. In spite of the opportunity granted, the legal heirs of the workman have not taken steps to challenge the award. It appears that they are not interested in prosecuting the present intra court appeal. Accordingly, the appeal is dismissed.