HARJEET KAUR Vs. DELHI TRANSPORT CORPORATION

JUDGEMENT

(1.) The appellant is widow of late Sh. Jogender Singh who was employed as a Driver with Delhi Transport Corporation (DTC). He expired on July 4,1994 and before his death, he was removed from service of the DTC vide order dated October 21, 1993 after holding a departmental enquiry. At the time of removal of the husband of the appellant certain labour disputes regarding general demands made by the Union were pending before the Labour Court and the management of the DTC filed an application on October 21, 1993 itself under Section 33(2)(b) of the Industrial Disputes Act, 1947 before the concerned Industrial Tribunal for approval of its action to remove the husband of the appellant from service. The approval application was dismissed as having abated, vide order dated March 9, 1995. The appellant applied for arrears of salary as well as terminal benefits of her deceased husband vide legal notice dated June 4, 1999, besides several oral requests. The respondent by letter dated October 15,1999 informed her that dues will be released to her only upon deposit of an amount of Rs. 65,810/- by her. The respondent declined to release the terminal dues to the appellant on the ground that it was a case of termination and therefore the appellant was not entitled to any arrears of salary or to pensionary benefits. The appellant approached this Court by filing a writ petition being W.P.(C) No. 7865/2002 seeking a direction to the respondent to set aside the impugned order of removal and to pay the wages and also for a direction to sanction family pension to her w.e.f. July 4, 1994 payable under the CCS (Pension) Rules as her husband was a pension optee. This petition was dismissed by the learned single Judge vide order dated September 8,2004 on the ground of delay as the appellant was seeking quashing of order of termination after 9 years. The respondent, though appeared pursuant to the notice, did not apprise the Court that no order of termination existed on that day on account of dismissal of approval application under Section 33(2)(b). Respondent also failed to inform that the application for approval was dismissed as having abated. It appears that subsequently appellant came to know about the rejection of the approval application and she filed application for review of the judgment dated September 8,2004. This application came to be rejected on the ground that no ground for review was made out. Being aggrieved, the appellant filed L.P.A. No. 1875/2005 wherein the Division Bench permitted the appellant to withdraw the appeal with liberty to file appropriate proceeding. Thereafter, the appellant has filed the present petition for releasing arrears of salary of her deceased husband from October 21, 1993 till the date of his death i.e. on July 4, 1994 and also for other pensionary benefits with interest by treating the deceased husband of the appellant as an employee, who expired during service. The learned single Judge dismissed the writ petition by order under appeal. It was held that the legal heirs of deceased workman who were aware about the impugned removal did not move the Industrial Tribunal for their substitution in approval proceedings. Secondly, it was held that the application was barred by principles of res judicata..

(2.) Ms. Kitu Bajaj, learned counsel appearing for the appellant, strenuously contended that since the approval application of the respondent was dismissed by the Industrial Tribunal as abated the impugned order of removal had no legal consequence. Thus, the widow is entitled to all arrears of his salary till his death and family pension under the CCS (Pension) Rules. She relied upon the judgment of Supreme Court in Jaipur Zila Sahakari Bhoomi Bank Ltd. v. Sh. Ram Gopal Sharma and Others AIR 2002 SC 643 : (2002) 2 SCC 244 : 2002-I-LLJ-834 and particularly laid emphasis on paras 14 and 15 of the judgment, which are extracted below at p. 839 of LLJ:

(3.) Learned counsel for the appellant submitted that the termination is void ab initio and the deceased workman must be deemed to have been continued in service till his death and the appellant is entitled to the family pension. She submitted that the deceased husband was never served in the approval proceedings and though the death of the workman was apprised to the Tribunal by the respondent, legal heirs were not brought on record despite specific orders of the Industrial Tribunal and consequently the application came to be dismissed as abated. She submitted that even when there is decline of approval not on merits, the order of termination would become void and inoperative. She submitted that learned single Judge was in error in placing onus on the legal heirs of the deceased to implead themselves in the approval application even when notice of the proceedings was never served upon them.