VIJAY KUMAR TIWARI Vs. LT. GOVERNOR AND ORS.

JUDGEMENT

(1.) CHARGED with the allegation of beating Satnam Singh with an iron pipe, catching him with his hair, pulling him from the chair and then beating him with hands and feet besides abusing in filthy language, Vijay Kumar Tiwari the appellant herein faced an enquiry resulting into an order of removal from service as Assistant Fitter dated September 12, 1989 however subject to approval under Section 33(2) (b) of the I.D. Act. Vide the order dated February 06, 1996 the Labour Court held enquiry to be vitiated as no evidence was led on the issue of validity of the enquiry and dismissed the application on February 14, 1997 declining approval for the reason that the management did not adduce evidence to establish alleged misconduct.

(2.) AGGRIEVED by the orders dated February 06, 1996 and February 14, 1997 DTC preferred a writ petition being W.P.(C) No. 2071/2000 which was allowed with the impugned order dated December 21, 2001 without prejudice to any proceedings that he may initiate under Section 10 of the I.D. Act. The writ petition filed by Mr. Vijay Kumar Tiwari for consequential relief was also dismissed by the impugned order. Aggrieved by the order dated December 21, 2001 Vijay Kumar Tiwari preferred the present appeal being LPA 394/2000. This appeal got linked with another batch of appeals and was disposed of vide a common order dated September 25, 2002. On a Special Leave Petition being filed by the DTC the order dated September 25, 2002 in the present appeal was set aside and the matter remanded back to this Court for re -hearing as the present case did not relate to an employee being absent without leave.

(3.) IN the decision reported as : AIR 1959 SC 389 M/s. G.Mckenzie and Co. Ltd. Vs. Workmen and Ors. the Supreme Court laid down that Section 33 I.D. Act does not confer any jurisdiction on the Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute; in deciding whether permission should or should not be granted the Industrial Tribunal is not to act as a reviewing tribunal against the decision of the management but to see that before it lifts the ban against the discharge or punishment of the workmen, the employer makes out a prima facie case. The nature and scope of proceedings under Section 33 shows that removing or refusing to remove the ban on punishment or dismissal of workmen does not bar the raising of an industrial dispute when as a result of the permission of the Industrial Tribunal the employer dismisses or punishes the workmen. As the purpose of Section 33 of the Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under Section 33 would not operate as res -judicata and bar the raising of an industrial dispute.