Romi Sharma v. Secretary Labour

1. The appellant is aggrievedijyith&-ihrpugned order of/the learned Single Judge da\ed^ijjp5t|oi3f'ff'#%oiitejjftl|^fe^^^^ V> V n " ^ '.. '"p''' '/' the findings record^^^^tJ^^^i^ai^l^m^Yiie its award dated 03.07.2001 under Section 33(1) of Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), the impugned judgment erroneously concluded that the matter had attained finality and consequently that the principle of res judicata was applicable. The facts are rather convoluted. LPA No. 486/2013 page I 2015:DHC:11260-DB f

2. Briefly the facts are that the respondent-Management had sought to take disciplinary action by dismissing the workman. At that point of time an unrelated industrial dispute was pending. The Management approached the Industrial Tribunal—^which was seized of the dispute, seeking permission under Section 33(2)(b). The application, however, was dismissed asnotrnaintainable. Atthattime. an industrial dispute^witK ^whiGh'^the apipellant's dismissal was fl connected was p,&ding«beiforeftte»Industrial'^^^^ Instead of approaching iie^Munal hn^^M^p3(l)(b),'^ %nagement approached it under Section $|;(|^pp%T|[e application moyed by the Management! was dismissed.Jlffiappraached this Court in the first I li I,• •''V t\ V round ofthe %it proiei®in^vh^^|i^^ thatfcy then the workman had sohgIiti|e^edies.underJ^ptipn ^^/'pde record would also disclose that Sectrdm-33^^hich^^y^is a deemed reference under the Industrial Disputes Act culminated in (a) a specific finding that the provision of Section 33 had been violated and (b) upon consideration of the additional evidence led before the Tribunal, that the dismissal was justified under Section 33(2)(b). The workman approached this Court unsuccessfully first before the learned Single LPA No. 486/2013 Page 2 / >0 Judge and later in a Letters PatentAppeal before Division Benchwith respect to the findings of misconduct. It is stated that an appeal is pending before the Supreme Court with regard to the findings on misconduct recorded by the Tribunal.

3. Parallelly, the dismissal under Section 33(2)(b) proceedings led to initiation of writ proceedings before this Court. In this round, the Management was successful bpth^efore theTeamed Single Judge and the Division Benpn. appeal |bv??Special Leave-^against this set of proceedings iS' p|piing Coiirt?,^W what is, i I apparently the final round, approached the appropriate 51' li li 5 til ii li l\ IIII U11 I [J Govemmenh\seeking sanction||oss\prps,ecute the Managemfent under iJ Section 31 read with Spefipnp44>fme Acf^'HerC^gam the premise of these proceeding^a|%1^tirajDf^S^ J'f^fe^f-Govemment of NrT h- t, •. JNCi, which IS the approprtat^Goverlmenf,''after considering the entire record, rejected the request for sanction to prosecute the Management. This order is extracted below:- "Writ petition No.3115 of 1998 had been filed by you before the Hon 'ble High Court of Delhi. The following was one ofthefollowingprayers in the W.P.:- "(d) issue a writ of mandamus or any other appropriate writ, order or direction directing the LPA No. 486/2013 Page 3 appropriate Government to initiate the prosecution proceedings against the respondents 3 to 7 for violating and contravening the Section 33 of the Industrial Disputes Act, 1947. " While deciding the Writ Petition, the Hon 'ble High Court in itsjudgment, declared:

challen'ge^Cin LPA NofmMl'dM^O0. The HoriiMe High CourtfpfDelhi in LPA 'W):i[8]:85Mf0OO[4] in para 19, notes that 'jNo doubt, the ThlBundVAhad by its order dated 13.06S997 and 2.12.20dJji^^ldX$hat section 33 q^the Industrial Disputes A^&f^^Mid^M'ten violated." 'Ir& the aforesdij^para0japhf^djl^fj;)le^p^ hadonly referred to the oMerv0kPhs dftl^iM^jSMM. In its findkdicision, in para 23'jme^Hqn 'ble^^^urt l^SjchHd;'^4l^Mfflly agree with the Letrded"^Singler3udge:^nd^dismissed the appeal." ' ^ The issue has specifically been decided against the Petitioners by the Learned Single Judge in W.P.(C) NO. 3115/98. The observations ofthe Single Judge have been fully upheld in the LPA No. 885/04 judgment delivered on November 19, 2005. In view ofthe orders ofthe Hon 'ble High Court ofDelhi, no action can be initiated in respect ofyour application. " LPA No. 486/2013 - ft ^ Page[4]

4. The learned Single Judge noticed all these circumstances and was of the opinion that the fresh attempt by the writ petitioner— workman is barred by resjudicata and that no directions were called for.

5. Counsel for the^.api€fiant|r^pntende'a^hat the learned Single Judge fell into eifort^bebause tiMate the fmdihgs 'fecorded by the Industrial Tnbunal^with respteMte|%fion ofSdetioiixBS have not /•' V\ been set asige. It is subniitl^|«|®<i the Management did not challenge t|ose findings r^MI llhlt happened wasl that the Management%content™.;^i|^dfclfethe^licability ofSection 33(2)(b) was succeisMfan^That aspect had^lttafndMhaiity. VOh'-rv, '• •''x' Tar?£5o ^ A. j-. \ri 5--^^ • o. A consideration dfme^ntire=record'i^ould reveal that what is in dispute really is the exercise of discretion by the appropriate Government notto prosecute the Management in the circumstances of this case. Undoubtedly, the Industrial Tribunal did record findings adverse to the Management as is evident inpara 27 ofthe order dated 02.12.2000 under Section 33. Did it, however, lead to the submission LPA No. 486/2013 that the appropriate Government was bound to grant sanction to prosecute the management? This aspect necessarily has to be considered in the totality of the circumstances. These circumstances are that both the Management and the workman were aggrieved by the Tribunal's order. The Tribunal's order, or deemed award as the expression would be in terms of Section 33A, itself did not grant any relief to the workman.^Tlfe" workmen chalienged in writ and their li % landings on that sc. i! liilll J returned in liis favour. Of course,^thdftaspect had not attained finality H j '"Af fit Iti w/A V/#r[4] On the otherfharid; the Mailag^hij^nt'Xsudcessfully^^ that I I Section 33(i)(b) was applic^fli|jaMd^^ridings on that score were on account d| the pdh^ncm'^ot^pdciaKi.e before the '% J • Supreme Court. % '?S^£|cT X3i

7. Having regard iB^^t^esew-circ^istilhces, the appropriate Government appears to have not accepted the workman's submission that sanction to prosecute under Section 31 read with Section 34 had to be granted. Considering the contentious nature of the facts and the circumstances that this Court had earlier found, that the proceedings under Section 33(2)(b) to be maintainable and recorded findings of •LPA No. 486/2013 this case in respect of Section 33(2)(b) on account of the award under Section 33A, it cannot be said that refusal to grant sanction to prosecute was arbitrary or vitiated on any account, i.e., overlooking relevant facts or taking relevant facts into account.

8. In view of the above discussion, we are of the opinion that no interference is called for with the findings ofthe learned Single Judge and the appeal is conseqpellffwdisnaisged.J n y ^ o ^ 7/^.r. <bx r/ f/ %. NOVEMBER'S, iji#;: JJIj \X. "-o..<i'' '•p LPA No. 486/2013 rJfim iJS, Km'K? ^ci A>.y^ -w • Ar^ •.Ay x_,' irf?1 J 8 y. y