Smt. Harjeet Kaur Vs. Dtc - Court Judgment

Excerpt:
- - the approval application was dismissed as having abated, vide order dated 09.03.1995. the appellant applied for arrears of salary as well as terminal benefits of her deceased husband vide legal notice dated 4.6.1999, besides several oral requests. 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. this clearly means that on a matter or issue in question, there has to be an application of the judicial mind and a final adjudication made. the right of family pension cannot be deprived on mere technicalities as the employer has failed to obtain the approval under section 33(2)(b) of the industrial disputes act. the termination of the deceased employee was clearly void ab initio and he must be deemed to have been continued in service till his death on 4.7.1994. learned counsel appearing for the appellant states that she has no objection if arrears of salary of the deceased workman from the date of his termination till the date of his death is adjusted towards the outstanding loan amount.order1. the appellant is widow of late sh. jogender singh who was employed as a driver with delhi transport corporation (dtc). he expired on 04.07.1994 and before his death, he was removed from service of the dtc vide order dated 21.10.1993 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 21.10.1993 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 09.03.1995. the appellant applied for arrears of salary as well as terminal benefits of her deceased husband vide legal notice dated 4.6.1999, besides several oral requests. the respondent by letter dated 15.10.1999 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. 4.7.1994 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 8.9.2004 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 8.9.2004. this application came to be rejected on the ground that no ground for review was made out. being aggrieved, the appellant filed lpa 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 21.10.1993 till the date of his death i.e. on 4.7.1994 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 ors. : (2002)illj834sc and particularly laid emphasis on paras 14 & 15 of the judgment, which are extracted below:14. 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 of 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 d ischarge 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 on any of the grounds available to him. section 33a is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway 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 or 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 meaning- less 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.15. the view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under section 33a, cannot be accepted. in our view, not making an application under section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to section 33(2)(b). an employer who does not make an application under section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. if it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. an employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under section 33a notwithstanding the contravention of section 33(2)(b), proviso, driving the employee to have recourse to one or more proceeding by making a complaint under section 33a or to raise another industrial dispute or to make a complaint under section 31(1). such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.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.4. we find considerable substance in the argument of the learned counsel. in our opinion, the rejection of the approval application would render the termination void ab initio and consequently the employee would be deemed to be in service and the appellant is entitled to the family pension as prayed by her. the only defence that was raised on behalf of the dtc is that the present petition is barred by res-judicata. as stated earlier, the fact of rejection of the approval application was suppressed from this court when the earlier petition was dismissed on 10.10.2004. the writ petition was dismissed solely on the ground of delay and the fact of the rejection of application for approval was not an issue before the court. this fact was brought to the notice of the learned single judge in the review proceedings, where the review application was dismissed without going into the merits of the contention. the lpa filed against the order of rejection of the review application was withdrawn and the division bench granted liberty to the appellant to adopt appropriate proceedings. the learned counsel for the appellant has contended and in our opinion rightly that when there was no determination of the case on merits, it cannot operate as res-judicata in a subsequent proceeding. in support of her contention, she relied upon the decisions of the supreme court in sheodhan singh v. daryo kunwar : [1966]3scr300 , inacio martins v. narayan hari naik : [1993]2scr1015 and state of maharashtra v. national construction com. bombay : [1996]1scr293 . in sheodhan singh v. daryo kunwar (supra), while considering the meaning of the words 'heard and finally decided', used in section 11 of the code, the court observed:where, for example, the former suit was dismissed by the trial court for want of jurisdiction...or on the ground of non-joinder of parties...and the dismissal is confirmed in appeal (if any), the decision not being on merits, would not be res judicata in a subsequent suit.5. this view was followed in inacio martins v. narayan hari naik (supra). this issue was again considered in the case of state of maharashtra v. national construction com. bombay (supra) where it was held that the bar under section 11 of cpc applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court competent to try such suit. this clearly means that on a matter or issue in question, there has to be an application of the judicial mind and a final adjudication made. if the former suit is dismissed without any adjudication on the matter in issue or merely on a technical ground of non-joinder, that cannot operate as res-judicata. the contention of the dtc counsel that the petition is barred by res-judicata is therefore liable to be rejected.6. it has been consistently held by several judgments of the supreme court that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right. the pension is not an ex-gratia payment but it is a payment for the past service rendered and it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. the right of family pension cannot be deprived on mere technicalities as the employer has failed to obtain the approval under section 33(2)(b) of the industrial disputes act. the termination of the deceased employee was clearly void ab initio and he must be deemed to have been continued in service till his death on 4.7.1994. learned counsel appearing for the appellant states that she has no objection if arrears of salary of the deceased workman from the date of his termination till the date of his death is adjusted towards the outstanding loan amount. we hasten to add that no such amount is liable to be adjusted against the family pension. the respondent is directed to release the family pension including the arrears of family pension in favour of the appellant within six weeks from today along with interest @ 12% per annum. appeal is disposed of accordingly.

Judgment:
ORDER

1. The appellant is widow of late Sh. Jogender Singh who was employed as a Driver with Delhi Transport Corporation (DTC). He expired on 04.07.1994 and before his death, he was removed from service of the DTC vide order dated 21.10.1993 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 21.10.1993 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 09.03.1995. The appellant applied for arrears of salary as well as terminal benefits of her deceased husband vide legal notice dated 4.6.1999, besides several oral requests. The respondent by letter dated 15.10.1999 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. 4.7.1994 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 8.9.2004 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 8.9.2004. This application came to be rejected on the ground that no ground for review was made out. Being aggrieved, the appellant filed LPA 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 21.10.1993 till the date of his death i.e. on 4.7.1994 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 Ors. : (2002)ILLJ834SC and particularly laid emphasis on paras 14 & 15 of the judgment, which are extracted below:

14. 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 of 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 d ischarge 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 on any of the grounds available to him. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway 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 or 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 meaning- less 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.

15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33(2)(b), proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.

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.

4. We find considerable substance in the argument of the learned Counsel. In our opinion, the rejection of the approval application would render the termination void ab initio and consequently the employee would be deemed to be in service and the appellant is entitled to the family pension as prayed by her. The only defence that was raised on behalf of the DTC is that the present petition is barred by res-judicata. As stated earlier, the fact of rejection of the approval application was suppressed from this Court when the earlier petition was dismissed on 10.10.2004. The writ petition was dismissed solely on the ground of delay and the fact of the rejection of application for approval was not an issue before the Court. This fact was brought to the notice of the learned Single Judge in the review proceedings, where the review application was dismissed without going into the merits of the contention. The LPA filed against the order of rejection of the review application was withdrawn and the Division Bench granted liberty to the appellant to adopt appropriate proceedings. The learned Counsel for the appellant has contended and in our opinion rightly that when there was no determination of the case on merits, it cannot operate as res-judicata in a subsequent proceeding. In support of her contention, she relied upon the decisions of the Supreme Court in Sheodhan Singh v. Daryo Kunwar : [1966]3SCR300 , Inacio Martins v. Narayan Hari Naik : [1993]2SCR1015 and State of Maharashtra v. National Construction Com. Bombay : [1996]1SCR293 . In Sheodhan Singh v. Daryo Kunwar (supra), while considering the meaning of the words 'heard and finally decided', used in Section 11 of the Code, the Court observed:

Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction...or on the ground of non-joinder of parties...and the dismissal is confirmed in appeal (if any), the decision not being on merits, would not be res judicata in a subsequent suit.

5. This view was followed in Inacio Martins v. Narayan Hari Naik (supra). This issue was again considered in the case of State of Maharashtra v. National Construction Com. Bombay (supra) where it was held that the bar under Section 11 of CPC applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. This clearly means that on a matter or issue in question, there has to be an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue or merely on a technical ground of non-joinder, that cannot operate as res-judicata. The contention of the DTC counsel that the petition is barred by res-judicata is therefore liable to be rejected.

6. It has been consistently held by several judgments of the Supreme Court that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right. The pension is not an ex-gratia payment but it is a payment for the past service rendered and it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. The right of family pension cannot be deprived on mere technicalities as the employer has failed to obtain the approval under Section 33(2)(b) of the Industrial Disputes Act. The termination of the deceased employee was clearly void ab initio and he must be deemed to have been continued in service till his death on 4.7.1994. Learned Counsel appearing for the appellant states that she has no objection if arrears of salary of the deceased workman from the date of his termination till the date of his death is adjusted towards the outstanding loan amount. We hasten to add that no such amount is liable to be adjusted against the family pension. The respondent is directed to release the family pension including the arrears of family pension in favour of the appellant within six weeks from today along with interest @ 12% per annum. Appeal is disposed of accordingly.