At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE SHIV NARAYAN DHINGRA
For the Petitioner: Hanu Bhaskar, Advocate. For the Respondent: S.N. Shukla, Brijesh Kumar Tamber, Advocates.
1. This petition has been filed by the petitioner, challenging the award dated 5.11.2004 passed by Industrial Tribunal II, Karkardooma in ID No.1155/1990 directing the management to take the respondent on duty and pay arrears. Briefly the facts are that the respondent was working as conductor with the petitioner corporation. A raid was conducted at the bus on which he was on duty on 17.7.1987 and it was found that he did not issue tickets to four passengers traveling from Khurja to Bullendshar, despite payment of fare to him by the passengers. The challan was issued by the raiding party and complete remarks were given on the way bill and the complaint book was closed. Another group of passengers on front seat were also found traveling without tickets. On confronting them with the conductor, the conductor admitted his fault and surrendered four unpunched tickets No.13848 and 13851 to the checking staff. He refused to sign the statements given by passengers and recorded in his presence. Charge sheet was issued with the above charges of non issuance of tickets despite receiving fares, which amounted to misconduct as per rules of Corporation and an enquiry was conducted into this misconduct and the enquiry officer found that charges levelled in the charge sheet as proved and forwarded his report to disciplinary authority. Disciplinary authority issued show cause notice to the respondent, passed an order of removing of the respondent from service and one month's salary was sent to the respondent. On 3.7.1989 an application under Section 33(2)(b) of Industrial Disputes Act was made by the petitioner for approval of dismissal of the respondent. On 27.6.1990, respondent raised a dispute about his dismissal and this dispute was referred vide a reference dated 27.6.1990 by the Secretary(Labour) to the Tribunal. During pendency of dispute, raised by workman, the application under section 33(2) (b) was dismissed as withdrawn on 7.10.1998. The Tribunal passed an award dated 21.8.2002. This award was challenged by the petitioner vide WP(C) No.3228/2003. This writ petition was allowed vide order dated 20.8.2004 and this Court remanded the matter back to the Tribunal. The Court directed the Tribunal to give decision in accordance with law and judgment of Supreme Court as well as this Court on the issue and directed parties to appear before the Tribunal on 27th September, 2004 The petitioner had preferred an appeal against this decision vide LPA No.948/2004 which petitioner withdrew on 8.2.2005. However, parties appeared as directed by this Court before the Tribunal. On 5.11.2004, Tribunal observed that representative of DTC(Petitioner) had stated at bar that the dismissal of application under section 33(2)(b) dated 7.10.1998 was final. The Tribunal observed that the workman shall be deemed to be in service and would be entitled to the entire wages and duty. The Tribunal directed the workman to report on duty on 17.11.2004 and observed that management may take him on duty and may report the payment arrears. If the management failed to take him on duty and pay back wages, the workman would be at liberty to file complaint for prosecution of the management.
2. It appears from the order of Tribunal that Tribunal considered that since application made by the petitioner under Section 33(2)(b) of the I.D. Act seeking approval of the dismissal of the workman had been withdrawn, therefore, the Tribunal was not supposed to follow the order of this court to pass an award after considering the judgment of the Supreme Court and this Court. Section 33(2)(b) of Industrial Disputes Act reads as under:
“33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing order, in accordance with the terms of the contract, whether express or implied, between him and the workman]-
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.”
3. A bare reading of this section would show that application under section 33(2)(b) of the Act is required to be made only where dismissal of a workman is done during the pendency of any proceedings before the Industrial Tribunal. It is seen from different writ petitions filed by DTC pending in this Court that in all cases where a workman is dismissed after holding enquiry, DTC/petitioner is making application under Section 33(2)(b) of the Act to the Tribunal irrespective of the fact whether any proceedings are pending before the Tribunal or not. An application under Section 33(2)(b) of the Act is statutorily required to be made only under the circumstances prescribed under this section. An application made beyond the provisions of section 33(2)(b) of the Act, is not a valid and legal application and its withdrawal or dismissal will have no effect. It is not the case of the workman that application under section 33(2)(b) of the Act was made by DTC during the pendency of any earlier proceedings before the conciliation officer or a Board or pendency of proceedings before Labour Court or Tribunal. In absence of pendency of any proceedings before the Labour Court or Tribunal or conciliation officer or a board at the time of dismissal of the workman, there was no necessity of making application under Section 33(2)(b) of the Act. Even if any such application is made, such an application is superfluous application and the Tribunal is not bound to consider such an application. Where a dismissal of a workman is observed for misconduct by DTC and no other previous proceedings are pending before any authority as stated in section 33(2)(b), it is a case of termination after holding an enquiry and if the workman is aggrieved, he could only raise an industrial disp
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ute. In this case, the workman had raised industrial dispute. DTC had also made an application under Section 33(2)(b) of the Act. Since it is not the case that this application under Section 33(2)(b) was made during the pendency of some proceedings, the Judgment of Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. 2002 AXX (L and S) 278 would not be applicable. 4. I consider that the Tribunal had grossly misdirected itself by not proceeding as directed by this Court. This writ petition is allowed. The Tribunal is directed to act as per directions of this Court issued on 20.8.2004 in WP(C) No.3228/2003. No orders as to cost. Parties to appear before the Tribunal on 25th September, 2006.