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Roshan Singh Petitioner v. Delhi Transport Corporation
Factual and Procedural Background
The Court records that the Delhi Transport Corporation (DTC) was involved in a large number of matters in which applications under Section 33(2)(b) of the Industrial Disputes Act ("the Act") had been made for approval of departmental orders of dismissal or discharge. Learned counsel for the DTC stated that there were 325 such cases in which the Labour Court/Tribunal had refused to approve the order of dismissal under Section 33(2)(b). Of these 325 cases, 221 orders had been challenged, 28 were intended to be challenged and papers were entrusted to counsel, and six employees had been taken back on duty by the DTC, leaving 70 cases where the orders under Section 33(2)(b) had not been challenged.
This judgment governs and disposes of writ petitions in respect of some of those employees, specifically CW 1673/02 together with CWP 1951/02, 383/03, 2219/03, 2345/03, 8010/02 and 4826/01. The petitions (taken up for hearing with the consent of counsel) seek a writ of mandamus directing the DTC to treat petitioners (workmen) as continuing in service and to grant consequential benefits, including arrears, because the DTC's applications under Section 33(2)(b) had been rejected and that rejection had not been challenged and had become final.
Legal Issues Presented
- Whether, upon refusal by the Industrial Tribunal of an application under Section 33(2)(b) of the Industrial Disputes Act, the employer is bound to treat the employee as continuing in service and give all consequential benefits.
- Whether an employee whose employer's application under Section 33(2)(b) is refused must separately seek reinstatement, or whether the refusal itself renders the dismissal inoperative and entitles the employee to relief (including under Article 226).
- Whether consequential benefits should be determined uniformly by the legal consequence of a refusal under Section 33(2)(b) or instead be varied according to factual differences (i.e., whether a distinction should be drawn between de facto and de jure situations in awarding consequential benefits).
Arguments of the Parties
Counsel for the Petitioners
- Relying on authority of the Supreme Court, petitioners contended that where an Industrial Tribunal refuses approval under Section 33(2)(b), the employer is bound to treat the employee as continuing in service and to grant all consequential benefits; if benefits are not granted, the employee can enforce the right by filing a writ petition under Article 226.
- It was submitted (by counsel in CW 1673/2002) that a binding Constitution Bench decision establishes that when approval under Section 33(2)(b) is refused the order of dismissal remains inchoate and the employee is to be deemed to have continued in service, with no need for a separate reinstatement order; Section 33A serves to enable challenge to approval where given, but is not a precondition to relief where approval is refused.
Counsel for the Respondent / DTC
- Learned counsel for the DTC identified the total number of cases and the procedural status (325 cases, with various subsets challenged or not, and some employees reinstated).
- Mr. Sabharwal (for the DTC) contended that there is a difference between consequential benefits appropriate to a de facto situation and those appropriate to a de jure situation, and that consequential benefits should be granted in accordance with the facts of each case. He sought to distinguish cases where the Tribunal subsequently found termination violative of Section 25(F) of the Act from the present cases where applications under Section 33(2)(b) were refused.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M.D., Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam, 2001 (3) SCALE | Holds that when the Industrial Tribunal refuses an application under Section 33(2)(b), the employer must treat the employee as continuing in service and give all consequential benefits; if the employer refuses, the employee may enforce rights by filing a writ under Article 226. The order of dismissal remains de facto but not de jure until approval is granted; refusal renders the dismissal invalid for legal purposes. | The Court relied on this authority to reject the DTC's contention that employees should continue to suffer adverse consequences after refusal of approval; the Court applied the principle that refusal under Section 33(2)(b) requires the employer to treat the employee as in service and grant benefits. |
| Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma & Others, 2002 (1) SCALE 190 (5-Judge Constitution Bench) | Clarifies that where approval under the proviso to Section 33(2)(b) is refused, the order of dismissal or discharge is inoperative and the employee is to be deemed to have continued in service with entitlement to benefits; no separate reinstatement order is necessary. Explains the purpose and availability of Section 33A where approval is granted and the employee wishes to challenge it. | The Court treated this decision as binding and decisive: because the Supreme Court established that refusal of approval leads to the employee being deemed in service, the Court concluded that failure to challenge under Section 33(2)(b) leads to a position where the workman is to be continued in employment and entitled to corresponding benefits. |
Court's Reasoning and Analysis
The Court began by recording the factual posture and the procedural status of the connected matters. It then addressed the legal submissions and the authorities relied upon by the petitioners. Two Supreme Court decisions were treated as determinative and binding on this Court.
The M.D. Tamil Nadu State Transport Corporation decision was cited and quoted for the proposition that an order of dismissal passed by an employer remains de jure incomplete until the authority under Section 33(2)(b) grants approval; where the Tribunal refuses approval, the employee must be treated as continuing in service and is entitled to consequential benefits, and may enforce that right by a writ under Article 226.
The Jaipur Zila Sahkari Constitution Bench decision was cited for the further exposition that refusal to grant approval renders the dismissal inoperative and that the employee is deemed to have continued in service with all attendant benefits, obviating the need for a separate reinstatement order. The judgment also explained the scope and purpose of Section 33A where approval is granted and an employee seeks to challenge that approval.
Having considered these authorities, the Court concluded that the law is categorical: where approval under Section 33(2)(b) is refused and that refusal stands unchallenged, the legal consequence is that the employee is to be treated as having continued in service and is entitled to all benefits flowing from that status. The Court rejected the DTC's submission (advanced by Mr. Sabharwal) that consequential benefits should be varied according to factual distinctions between de facto and de jure situations, holding that the binding Supreme Court authority determines the legal consequence.
On this basis, the Court allowed the writ petitions and issued directions to the respondent/DTC to treat the petitioners as continuously in service and to pay all arrears of emoluments and other consequential benefits by a specified date; the Court also directed the petitioners to report for duty by that date to avail the benefits of the judgment.
Holding and Implications
The writ petitions are allowed, and the respondent/DTC is directed by a writ of mandamus to treat the petitioners/workmen as having continued in service and to pay all arrears of emoluments and consequential benefits by 1st July, 2003.
Direct consequences of this holding (as ordered by the Court):
- The respondent/DTC must treat the petitioners/workmen as having continued in service all along.
- The respondent/DTC is directed to pay all arrears of emoluments and all other consequential benefits not later than 1st July, 2003.
- To avail the benefit of this judgment, the workmen/petitioners involved in these writ petitions must report for duty on or before 1st July, 2003; if they do so, they are to be granted the consequential benefits as if they had continued in service all along.
- A copy of the judgment is to be placed on the case file of the connected matters.
The Court applied existing Supreme Court precedents to arrive at this result and did not purport to lay down new law; the decision operates to give the petitioners the direct relief described above.
Mukul Mudgal, J.:— Learned counsel for the DTC states that in all there were 325 cases in which there were refusal of the Labour Court/Tribunal to approve the order of dismissal, by way of the application(s), moved by the respondent, DTC under 33(2)(b) of the Industrial Disputes Act(hereinafter referred to as the Act') She further submits that out of 325 cases, challenges had been made to 221 such orders and in respect of 28 cases decision to challenge had been taken and papers entrusted to counsel. She also submitted that in six cases employees have been taken back on duty by the DTC and this leaves a total of 70 cases where the orders under Section 33 (2)(b) of the Act were not challenged. It is the cases of some of these employees, i.e, CW 1673/02 with CWS 1951/02, 383/03, 2219/03, 2345/03, 8010/02 & 4826/01 which will be governed and disposed of by this common judgment.
2. Rule. With the consent of the counsel for the parties, the writ petitions are taken up today for hearing.
3. This writ petition and the other connected writ petitions seek a mandamus for continued service with the respondent/DTC of the petitioners, workmen as the petitioners have not been given consequential benefits of arrears and employment with the respondent in spite of the rejection of the approval application moved under Section 33 (2) (b) of the Act by the respon-dent/DTC. The rejection of the approval has not been challenged by the DTC and has become final.
4. Ms. Rasmeet Charya, Learned counsel for the petitioner in CW 2219/2003 has relied upon a judgment of Hon'ble Supreme Court in M.D, Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam, 2001 (3) SCALE which held that upon a refusal by the Industrial Tribunal of an application under Section 33 (2) (b) of the Act, the employer is bound to treat the employee as continuing in service and give him all consequential benefits and if such benefits are not granted, the employee shall have the rights to enforce the same by filing a writ petition under Article 226 rather than be compelled to have the matter re-agitated and decided by the Industrial Tribunal. The relevant portion of the above judgment reads as follows:
“From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains orders of approval from the Tribunal. By passing the order of discharge or dismissal de facto relationship of employer and employee may be ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a instant case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed under Section 33 (2) (b) of the Act on merit the employer is bound to the treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employee the latter is entitled to have his right enforced by filing a petition under Article 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunal's rejection of the prayer for approval the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute ..”
5. Mr. Tyagi, the learned counsel for the petitioner in CW 1673/2002 has relied upon a 5 Judges Constitution Bench judgment of the Hon'ble Supreme Court in Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. v. Shri Ram Gopal Sharma & Others, 2002 (1) SCALE 190. The position of law laid down by the Hon'ble Supreme Court in the aforesaid judgment is in the following terms:-
“Where an application is made under Section 33(2) (b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by Way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33A challenging the order granting approval or any of the ground available to him. Section 33A is available only to an employee and intended to save his time and trouble inasmuch as he can straightway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge of dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be meaningless and futile. The said Section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted.”
In view of the above categorical position of law laid down by the Hon'ble Supreme Court, by which this Court is fully bound/the conclusion is inescapable that the failure to challenge an order under Order 33(2)(b) of the Act will lead to a position where the workman is continued to be treated in employment and is entitled to all benefits flowing from such a situation.
6. Mr. Sabharwal, the learned counsel for the DTC in CW 6068/2001 raised a plea that difference in consequential benefits in case of a defacto situation and de jure situation. He submits that consequential benefits should be granted in accordance with the facts of each case. In my view, this question of Jaw_no longer survives in view of the position of law categorically enumerated by the Hon'ble Supreme Court in the M.D, Tamil Nadu State Transport Corporation's case (supra) where the de jure effect of an unsuccessful application by an employer under Section 33 (2)(b) has been explained. He has further sought to distinguish the impact of the cases where the Tribunal has subsequently found the termination of the services to be violative of Section 25 (F) of the Act and the orders refusing to allow applications under Section 33 (2)(b) of the Act in the present cases He submitted that in so far as the consequential benefits are concerned these cases should also be treated in a manner similar where the Industrial Tribunal found the dismissal to be violative of Section 25 (F) of the Act. I am of the view that this plea cannot be accepted because of the categorical pbsition of law laid down by the Hon'ble Supreme Court to the effect that the consequence of the refusal under Section 33(2) (b) of the Act is that an employee is deemed to have continued to be in service with all the available benefits.
7. Consequently in view of the above decisions, the writ petitions are allowed and the respondent/DTC is directed by a writ of mandamus to treat the petitioners/workmen to have continued to be in service all along and directed to pay all arrears of emoluments and all other consequential benefits not later than 1st July, 2003 and the petitions stand allowed and disposed of accordingly. In order to avail the benefit of this judgment, all the workmen/petitioners involved in these writ petitions will report for duty on or before 1st July, 2003. If all these petitioners report for duty on or before 1st July, 2003, they should be granted consequential benefits as if they had continued in service all along. Let a copy of this judgment be placed on the case file of the connected matters.
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