Delhi Transport Corporation Vs Shri Mohan Lal (Deceased) - Court Judgment

Excerpt:
writ petition in w.p.no.18290 of 2000 is filed under article 226 of the constitution of india seeking for the relief of issuance of writ of certiorarified mandamus calling for the records of the third respondent in his proceedings no.87/ed/rg/1a1/1999-2000 dated 18.10.2000 received on 21.10.2000 and quash the same and consequently restrain the respondents from initiating any coercive proceedings under the revenue recovery act against the petitioner for arrears of electricity charges so long as the petitioner is a sick industrial undertaking under the sick industrial companies (special provisions) act.1. whether reporters of local papers may be allowed to see the judgment? no2. to be referred to the reporter or not? no3. whether the judgment should be reported no in the digest?order.1. the petitioner dtc by this writ petition impugns the dismissal by the industrial tribunal of its application under section 33 (2)(b) of the id act seeking approval of its action/order dated 6th july, 1993 of dismissal of the deceased workman shri mohan lal whose legal heirs are now the respondent no.1. the workman shri mohan lal died on 24th december, 1998 during the pendency of the application under section 33(2)(b) before the industrial tribunal and his legal heirs were substituted in his place. the industrial tribunal vide order dated 7th august, 2002 on the preliminary issue framed as to the validity of the domestic inquiry preceding the order of termination of service, held the domestic inquiry to be vitiated for the reason of the petitioner dtc, though having placed the record of the domestic inquiry before the industrial tribunal but in proof of the same having examined only the clerk/typist of the inquiry officer and not the inquiry officer himself. the petitioner dtc sought an opportunity to prove the misconduct alleged against the workman before the industrial tribunal. however, the industrial tribunal vide order dated 3rd march, 2003 dismissed the application for the reason of, the workman having been charged with, while working as conductor with the petitioner dtc, reselling of tickets and found short of cash during a check carried out by the checking team of the petitioner dtc and further with having refused to sign the challan and causing hindrance in the work of the checking officials, the petitioner dtc having not examined any of the passenger witnesses who are/were alleged to have complained against the workman.2. aggrieved from the aforesaid dismissal of its application under section 33(2)(b), the present writ petition was filed. this court vide ex parte order dated 22nd october, 2003, while issuing notice of the petition stayed the operation of the aforesaid orders.3. the application under section 33(2)(b) was necessitated not because of any earlier dispute between the petitioner dtc and the workman aforesaid but owing to the then pendency of a general dispute between the petitioner dtc and its employees/workmen.4. the counsel for the petitioner dtc has contended that the order dismissing the application under section 33(2)(b) merely for the reason of non-examination of the passenger witnesses is bad in view of the judgment in state of haryana v. rattan singh air 1977 sc 1512 and dtc v. n.l. kakkar 110 (2004) dlt 493 laying down that production of passengers either in a domestic inquiry or before an industrial adjudicator is not at all necessary and is highly impractical.5. i have in judgment, also being pronounced today in dtc v. shyam lal w.p.(c) no.3633/2004 dealt in detail with respect to the scope of inquiry in a proceedings under section 33(2)(b) of the id act, particularly the difference with the scope of inquiry in adjudication of a industrial dispute under section 10 of the id act. it has been held in the said judgment that the inquiry/examination of the domestic inquiry as well as the misconduct alleged, in a proceeding under section 33(2)(b) is confined/limited only to whether it is by way of victimization; if it is not by way of victimization, any aberration even if therein would still not entitle the industrial adjudicator to refuse the approval sought under section 33(2)(b). it has also been held in that judgment that in the absence of even a plea on behalf of the workman that his termination is by way of victimization owing to the pending dispute, no further inquiry whatsoever may be needed by the industrial adjudicator on an application under section 33(2)(b) of the id act.6. i have in the record of the industrial tribunal requisitioned in this court, perused the reply of the deceased workman to the application under section 33(2)(b). i do not find any plea/averment therein of the order of his termination or the inquiry preceding the same being vitiated for the reason of victimization or for the reason of putting him to any prejudice in the pending industrial dispute, which as aforesaid was not with the deceased workman individually but with all the workmen/employees of the petitioner dtc. for this reason alone, the order of the industrial tribunal in the present case dismissing the application of the petitioner dtc under section 33(2)(b) becomes liable to be set aside/quashed, as done in the judgment in shyam lal (supra).7. in the present case, as noticed above, the workman died during the pendency of the section 33(2)(b) proceedings before the industrial tribunal. he was otherwise employed with the petitioner dtc since the year 1965. his demise was after approximately five years of the order of his dismissal. i have in the judgment in shyam lal, while granting approval under section 33(2)(b), permitted the workman in that case to raise an industrial dispute qua his termination. however in the present case, though the legal heirs of the deceased workman would also be entitled to similarly raise the industrial dispute but considering the nature of the controversy, and the long time which has elapsed since then, would not be entitled to lead any evidence, which the deceased workman himself only could have led. in view of the this peculiar feature and in exercise of powers under article 226 of the constitution, it is not deemed expedient to pass the same order in the present case as in shyam lal in as much as the same would be to the detriment of the legal heirs of the deceased workman.8. for this reason only, in view of the aforesaid peculiar development, the present writ petition is dismissed. costs having already been paid, no order as to costs.

Judgment:
1. Whether reporters of Local papers may be allowed to see the judgment? NO

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported NO in the Digest?

ORDER.

1. The petitioner DTC by this writ petition impugns the dismissal by the Industrial Tribunal of its application under Section 33 (2)(b) of the ID Act seeking approval of its action/order dated 6th July, 1993 of dismissal of the deceased workman Shri Mohan Lal whose legal heirs are now the respondent no.1. The workman Shri Mohan Lal died on 24th December, 1998 during the pendency of the application under Section 33(2)(b) before the Industrial Tribunal and his legal heirs were substituted in his place. The Industrial Tribunal vide order dated 7th August, 2002 on the preliminary issue framed as to the validity of the domestic inquiry preceding the order of termination of service, held the domestic inquiry to be vitiated for the reason of the petitioner DTC, though having placed the record of the domestic inquiry before the Industrial Tribunal but in proof of the same having examined only the clerk/typist of the Inquiry Officer and not the Inquiry Officer himself. The petitioner DTC sought an opportunity to prove the misconduct alleged against the workman before the Industrial Tribunal. However, the Industrial Tribunal vide order dated 3rd March, 2003 dismissed the application for the reason of, the workman having been charged with, while working as Conductor with the petitioner DTC, reselling of tickets and found short of cash during a check carried out by the checking team of the petitioner DTC and further with having refused to sign the challan and causing hindrance in the work of the checking officials, the petitioner DTC having not examined any of the passenger witnesses who are/were alleged to have complained against the workman.

2. Aggrieved from the aforesaid dismissal of its application under Section 33(2)(b), the present writ petition was filed. This Court vide ex parte order dated 22nd October, 2003, while issuing notice of the petition stayed the operation of the aforesaid orders.

3. The application under Section 33(2)(b) was necessitated not because of any earlier dispute between the petitioner DTC and the workman aforesaid but owing to the then pendency of a general dispute between the petitioner DTC and its employees/workmen.

4. The counsel for the petitioner DTC has contended that the order dismissing the application under Section 33(2)(b) merely for the reason of non-examination of the passenger witnesses is bad in view of the judgment in State of Haryana v. Rattan Singh AIR 1977 SC 1512 and DTC v. N.L. Kakkar 110 (2004) DLT 493 laying down that production of passengers either in a domestic inquiry or before an Industrial Adjudicator is not at all necessary and is highly impractical.

5. I have in judgment, also being pronounced today in DTC v. Shyam Lal W.P.(C) No.3633/2004 dealt in detail with respect to the scope of inquiry in a proceedings under Section 33(2)(b) of the ID Act, particularly the difference with the scope of inquiry in adjudication of a industrial dispute under Section 10 of the ID Act. It has been held in the said judgment that the inquiry/examination of the domestic inquiry as well as the misconduct alleged, in a proceeding under Section 33(2)(b) is confined/limited only to whether it is by way of victimization; if it is not by way of victimization, any aberration even if therein would still not entitle the Industrial Adjudicator to refuse the approval sought under Section 33(2)(b). It has also been held in that judgment that in the absence of even a plea on behalf of the workman that his termination is by way of victimization owing to the pending dispute, no further inquiry whatsoever may be needed by the Industrial Adjudicator on an application under Section 33(2)(b) of the ID Act.

6. I have in the record of the Industrial Tribunal requisitioned in this Court, perused the reply of the deceased workman to the application under Section 33(2)(b). I do not find any plea/averment therein of the order of his termination or the inquiry preceding the same being vitiated for the reason of victimization or for the reason of putting him to any prejudice in the pending industrial dispute, which as aforesaid was not with the deceased workman individually but with all the workmen/employees of the petitioner DTC. For this reason alone, the order of the Industrial Tribunal in the present case dismissing the application of the petitioner DTC under Section 33(2)(b) becomes liable to be set aside/quashed, as done in the judgment in Shyam Lal (supra).

7. In the present case, as noticed above, the workman died during the pendency of the Section 33(2)(b) proceedings before the Industrial Tribunal. He was otherwise employed with the petitioner DTC since the year 1965. His demise was after approximately five years of the order of his dismissal. I have in the judgment in Shyam Lal, while granting approval under Section 33(2)(b), permitted the workman in that case to raise an industrial dispute qua his termination. However in the present case, though the legal heirs of the deceased workman would also be entitled to similarly raise the industrial dispute but considering the nature of the controversy, and the long time which has elapsed since then, would not be entitled to lead any evidence, which the deceased workman himself only could have led. In view of the this peculiar feature and in exercise of powers under Article 226 of the Constitution, it is not deemed expedient to pass the same order in the present case as in Shyam Lal in as much as the same would be to the detriment of the legal heirs of the deceased workman.

8. For this reason only, in view of the aforesaid peculiar development, the present writ petition is dismissed. Costs having already been paid, no order as to costs.