D.T.C Vs. BAHADUR SINGH

JUDGEMENT

(1.) The challenge in this writ petition is to the award dated August 14, 2008 passed by the Industrial Tribunal in Complaint I.D No.1650/89, wherein the Tribunal has directed that the respondent be reinstated with continuity in service with 25% back wages.

(2.) The brief facts are that in the month of March, 1988, the petitioner corporation dismissed a large number of its employees. The respondent No.1 herein was also dismissed for allegedly participating in an illegal strike from March 17, 1988 to March 19, 1988 and for inciting and instigating other workers to strike work. Suffice to state that the petitioner did not hold inquiry to establish misconduct on the part of the employees before terminating their services. The petitioner invoked the provisions of Section IV of the Essential Services Maintenance Act, 1981 ('ESMA' in short) and holding of inquiry was dispensed with by the authorities invoking the Proviso II to clause 15(2)(c) of Delhi Road Transport Authority (Conditions of Appointment & Service) Regulations, 1952 ('Regulations' in short). Most of the dismissed employees filed writ petitions before this Court for a declaration that the dismissal is in violation of Section 33 of the Industrial Disputes Act, 1947 ('Act' in short). Those writ petitions were disposed of by the Division Bench of this Court vide a common order dated December 20, 1988, whereby the Court had upheld the vires of Proviso II to clause 15(2)(c) of the Regulations; directing the petitioners to pursue remedy for the contravention of the provisions of Section 33 of the Act; quash the order of the Appellate Authority in whichever cases they have been passed and further directing the Appellate Authority to hold inquiry itself and pass orders as may deem fit. It was also concluded by the Court that even if contravention of Section 33 is proved, The Tribunal is required to go into a further question as to whether the order of discharge or dismissal passed by the petitioner is justified on merit.

(3.) It appears that the matter was taken in appeal before the Supreme Court wherein order dated March 01, 1989 was passed. Be that as it may, on April 04, 1989 a notice was sent to the respondent No.1 requiring him to appear before the Appellate Authority for inquiry cum personal hearing. The respondent No.1 participated in the inquiry and denied the charges. It is noted from the award of the Tribunal that the respondent No.1 did not bring any co-worker nor produced any document in support of his case. It is also noted that he was also given an opportunity to cross examine the petitioner's witness and also to produce his own witness which he did not avail. Thereafter the Appellate Authority gave its findings on inquiry and confirmed dismissal order passed against respondent No.1. The respondent No.1 filed an application under Section 33 of the Act for quashing of order dated March 24, 1989 by which the services of the respondent No.1 were dismissed with a prayer for reinstatement with full back wages, continuity in service and other consequential benefits. The petitioner in its reply has challenged the maintainability of complaint under Section 33A of the Act. The said issue was decided by the Tribunal vide its order dated August 11, 1999 wherein it was decided that the complaint under Section 33A is maintainable. The management sought permission of the Tribunal to allow it to prove the misconduct on the part of respondent No.1 and the permission was granted. Accordingly, two further issues were framed in the following manner: