DELHI TRANSPORT CORPORATION Vs. JAGDISH CHANDER

JUDGEMENT

(1.) The law whether legislatively enacted or which finds its origin from the predicated judicial pronouncements, commonly known as Judge made law, is essentially mutable and progressive. It normally tilts in favour of the need of the developing society while keeping in view the object sought to be achieved by the provisions of a given statute. Absolute, strict or rigid interpretation of law can some time cause results which may not be conducive for the attainment of social goal by enforcement of the provisions of the Act. This concept is applicable with greater emphasis to social welfare legislations. Peter Muller said what is lasting is not what resists time but wisely changes with it. Often it is said that law must be understood and implemented in its correct prespective keeping in mind the constitutional mandate, attainment of ultimate legislative object and ends of justice. A legislation with its limitations reflects the vision of the society, the law makers and its enforceability is the foundation of its acceptance. Provisions of any Act, is a vision, without the ability to execute for the benefit of the section of the society for which it is enacted, is probably a hallucination. Sometimes the Courts in order to meet the need of public policy and welfare, materially take into consideration and rest their judgment on de facto doctrine. Diversified approach to a social problem within the limitation of the statutory provisions on rare occasion leads to divergent views being expressed by the Courts causing statement in effective and proper application of law by different quarters of the State Administration as well as judicial hierarchy. Divergent opinions per se are not adverse to the administration of justice. Divergent opinions in fact provide the foundation for development of law by reference to a Larger Bench. Exercise of such jurisdiction is an accepted norm in order to maintain consistency in law and judicial discipline.

(2.) A Division Bench of this Court in LPA No. 361/2002 took the view that the provision of Section 17(b) of the Industrial Disputes Act (hereinafter referred to as the Act) has no application in the proceedings of a pending writ petition arising from an order of the Industrial Tribunal rejecting the application of the employer under Section 33(2) of the Act. This view was divergent to the view taken by another Division Bench of the Court in an earlier LPA No. 426/ 2001 holding that an application under Section 17(b) of the Act would be maintainable in the cases of the present kind. Placed in this situation S.K. Mahajan, J. (as His Lordship then was) vide his order dated 9th April, 2003 in WP(C) No. 3871/2000 referred the question in the present writ petition to a Larger Bench. The order of reference reads as under: "Along with the counter-affidavit the respondent workman had filed an affidavit under Section 17-B of the Industrial Disputes Act for payment of full salary to the workman till such_time the writ petition was pending in this Court. In reply to the affidavit of the respondent under Section 17-B of the Act, it is submitted by learned Counsel for the petitioner that the application under Section 17-B was not maintainable inasmuch as no award directing reinstatement of the workman was challenged by the management. It is submitted that it is only in case an award directing reinstatement of the workman is challenged by the management that the Court has the power to direct payment of last drawn wages to the workman during the pendency of the proceedings before the High Court. While learned Counsel for the respondent has placed reliance upon the judgment of this Court in LPA No. 361/2002 decided on 25th September, 2002 to contend that in a case of this nature provisions of Section 17-B have no application, learned Counsel for the respondent workman has relied upon the judgment of this Court in LPA No. 426/2001 decided on December 6, 2001 to contend that the application under Section 17-B would be maintainable in the case of the present nature. The judgment of Division Bench in LPA No. 426/ 2001 has not been referred to in the judgment in LPA 361/2002. Since there is a conflict of opinions of the two Division Benches of this Court, it would be appropriate that the matter is authoritatively decided by a Larger Bench of the Court. This petition be, accordingly, placed before Hon'ble the Chief Justice for constituting a Larger Bench to decide a question as to whether the provisions of Section 17-B of the Industrial Disputes Act will be applicable in a case where the management in the writ petition has challenged the order of the Labour Court/Industrial Tribunal whereby its application under Section 33(2)(b) of the Act seeking approval of the order of dismissal was dismissed by such Court or Tribunal.

(3.) Before we embark upon the discussion on various facets of the case, reference to basic facts would be necessary. Jagdish Chander, workman was appointed as a conductor with the Delhi Transport Corporation on 20.5.88. According to the management, the workman was irregular and irresponsible towards his duties. The workman misbehaved with the passengers in the bus on 28.10.83 and a complaint was received against him upon which a warning was issued to the workman not to misbehave in future with any commuter. The workman remained absent unauthorisedly for 59 days for the period starting from January, 1987 to August, 1987. Vide order dated 17.5.88 the workman was censured. The respondent workman again absented himself unauthorisedly for 177 days during the period 1.1.88 to 31.12.88 for which punishment of three stages lower in the time scale of Conductor as on 22.7.89 was imposed upon him. Still again he was unauthorisedly absent during the period January, 1992 to October, 1992. Keeping in view his past service record, the Administration served a charge-sheet upon him on 19.1.1993. In the charge-sheet it was stated that he was absent during that period for 52 days and was not interested in performing his duties. This was treated to be a misconduct on the part of the employee in terms of para 4 and paras 19(f)(h) and (m) of the standing orders governing the conduct of Delhi Transport Corporation employees. An oral inquiry was conducted after affording full opportunity to the workman. The inquiry officer gave his report finding him guilty under the article of charges. The disciplinary authority while accepting the report of the inquiry officer issued show-cause notice to the workman while he was not removed from service. The workman submitted a reply which was considered by the disciplinary authority who by its order dated 19.5.93 removed the workman from service on the same day. One month's wages as contemplated under Section 33(2)(b) of the Act was sent to the respondent by money order. The corporation also filed an application for approval under Section 33(2)(b) of the Industrial Disputes Act before the Industrial, Delhi. This application was contested by the workman, after affording the parties opportunity to complete their pleadings and lead evidence in support thereof, vide its order dated 19.8.99, the application of the corporation was rejected by the Tribunal as it declined to grant the approval prayers for. This order of the Tribunal dated 19.8.99 has been impugned and its legality and validity is questioned by the petitioners in the present writ petition.