DELHI TRANSPORT CORPORATION Vs. RAJBIR SINGH

JUDGEMENT

(1.) The petitioner was employed as a conductor in Delhi Transport Corporation. He was removed from service w.e.f. 27.07.1994 after holding a domestic inquiry against him for his unauthorized absence for 225 days during 1993 which is a misconduct within the meaning of para 19(e)(h)(m) of the Standing Orders governing the conduct of DTC employees. Since a dispute with regard to a large number of DTC employees with regard to their removal from service on account of mass strike was pending adjudication before the Industrial Tribunal, the petitioner being the management filed an approval application under Section 33(2)(b) of the Industrial Disputes Act before the Industrial Tribunal for approval of its action for removal of the petitioner from service w.e.f. 27.07.1994 The approval sought for by the petitioner was declined by the Industrial Tribunal vide order dated 03.07.1997 passed in OP No. 21/1996.

(2.) During pendency of approval application before the Industrial Tribunal under Section 33 (2)(b) of the Industrial Disputes Act, the respondent raised an industrial dispute with regard to his removal from service and the said dispute was referred by the Government for 'adjudication by the "Industrial" Tribunal 'on 24.05.1996.' The Industrial Tribunal passed an award on 03.08.2004 in ID No. 354/1996 relying upon a judgment of Hon'ble Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Verma and Ors; AIR 2002 SC 643. The reference was not adjudicated by the Tribunal below on merits and the Tribunal simply relied upon the order of rejection declining approval to the management for removal of the respondent from service w.e.f. 27.07.1994 directed the petitioner/ management to pay full back wages to the legal heirs of the deceased respondent. It may be noted that the respondent being the workman expired during the pendency of the reference before the Industrial Tribunal on 02.12.2000 leaving behind his widow and two daughters who are stated to be 15-16 years old as on date.

(3.) Mr. Bhasin, learned counsel appearing on behalf of the petitioner has referred and relied upon a Division Bench Judgment of this Court in DTC Vs. Ram Kumar and Anr. (1982) II LLJ 191, wherein it is held that grant or refusal of permission by the Industrial Tribunal under Section 33 (2)(b) is not an adjudication and the industrial adjudication comes only when the matter is referred under Section 10 of the Labour Court to the Tribunal. In terms of the above referred Division Bench judgment of this Court, the Tribunal below was required to adjudicate the reference on merits notwithstanding refusal of approval for removal fo the respondent from service w.e.f. 27.07.1994. Mr. Vinod Kumar Singh, learned counsel appearing on behalf of the respondent/workman has not cited any judgment contrary to the Division Bench judgment of this Court referred and relied upon by the counsel for the petitioner. Hence this Court feels itself bound by the above referred Division Bench judgment of this Court according to which the reference was required to be decided by the Industrial Tribunal on merits though approval to the action of the petitioner for removing the respondent from service was declined. Under the circumstances, the impugned award which is not a judgment on merits cannot stand the test of judicial scrutiny and the impugned award is, therefore, set aside. The case is remanded back to the Tribunal below for fresh decision on merits after giving opportunity of hearing to both the parties. The parties are directed to appear before the Tribunal below/ Successor Court for further directions at 2:00 PM on 03.10.2008. The court below should make an endevour to decide the reference afresh as expeditiously as possible preferably within six months from today and the counsel appearing for both the parties have assured that they will not seek any adjournment on the dates that may be fixed by the Tribunal for hearing of the case. Needles to state that the court below shall keep in mind the death of the respondent/workman while deciding the reference which would be restricted only to the question of payment of back wages till the date 'of 'his 'death 'to 'his legal heirs in the event it is found that the impugned action of the petitioner/ management was unjustified.