Yad Ram Conductor v. DTC

SUBMISSIONS ADVANCED ON BEHALF OF PETITIONER/ WORKMAN

15. Mr. Anil Mittal learned counsel for the Petitioner/Workman argued that vide Award dated 13.02.2003, the learned Labour Court rejected the approval application filed by the Respondent/Management. Hence once the approval application has been rejected, the learned Labour Court ought not to have proceeded with Section 10 proceedings in I.D. No. 144/2001. Therefore, the Impugned Award is without any jurisdiction and is a nullity in the eyes of law. Hence, the impugned award is liable to be set aside.

16. Mr. Mittal, learned counsel for Petitioner/Workman placed reliance upon the decision of Hon‟ble Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs Shri Ram Gopal Sharma & Ors., reported as AIR 2002 SC 643 in order to substantiate his contention that the order of removal from service will have no effect once the approval application under Section 33(2)(b) of I.D. Act of the Respondent/Management is dismissed.

17. It is further argued by Mr. Mittal, learned counsel for Petitioner/Workman that the Workman had given detailed reasons for his absence from duty before the enquiry officer but his statement was considered as an admission of charges against W.P(C) 1910/2010 Pages 7 of 15 him by the enquiry officer. It is stated that there was no such admission by the Petitioner/Workman but still his statement was considered as admission due to the bias of the enquiry officer against him. Therefore, the Petitioner/Workman was subject to victimization by the acts of the Respondent/Management. Mr.Mittal, learned counsel for Workman has placed reliance upon decision of Supreme Court in Chikkam Koteswara Rao Vs Chikkam Subbarao & Ors., reported as AIR 1971 SC 1542, while submitting that there should be no ambiguity in the admission and it must be clear and conclusive.

18. With these submissions, the learned counsel for the Petitioner/Workman prays for the setting aside of the impugned Award.

SUBMISSIONS ADVANCED ON BEHALF OF RESPONDENT/MANAGEMENT

19. Mr. U.N. Tiwary, learned counsel for Respondent/Management has argued that the present Writ Petition, challenging the Impugned Award has been filed by the Petitioner/Workman almost after a period of six and a half years, so the same should be dismissed on this ground alone.

20. Mr. Tiwary submits that the Workman has stated the reason of his leaves in his leave applications as illness, but before the enquiry officer he stated that he was absent on account of bereavement of his father, wife and uncle. However, he was not able to produce death certificate of anyone before the enquiry officer or before the learned Labour Court, except for his father. Mr. Tiwary submits that this shows that the contention of W.P(C) 1910/2010 Pages 8 of 15 Petitioner/Workman was an afterthought and he misled the enquiry officer and the learned Labour Court by stating different reasons for his absence.

21. Mr. Tiwary further states that in a proceeding where enquiry is declared to be vitiated, then the learned Labour Court would have to grant an opportunity to the management to prove the misconduct on merits and in a case where the management successfully proves the misconduct, the learned Labour Court can approve the dismissal even if it has found that the enquiry was vitiated. He has placed reliance upon the decision of Supreme Court in John D’ Souza Vs Karnataka State Road Transport Corporation, reported as (2019) 18 SCC 47, in order to support his submission. He further stated that the learned Labour Court dismissed the approval application on an erroneous ground that absence was already treated as leave without pay by the Management which does not amount to misconduct.

22. Mr. Tiwary further submits that an order disposing off an approval application under Section 33(2)(b) cannot operate as res judicata in a proceeding initiated under Section 10 of I.D. Act. He states that the jurisdiction of the learned Labour Court is different in both the proceedings as under Section 10 of I.D. Act, an Industrial Tribunal has a wider jurisdiction in comparison to a proceeding under Section 33(2)(b) of I.D. Act. Learned counsel for Respondent/Management placed his reliance upon John D’ Souza Vs Karnataka State Road Transport Corporation, reported as (2019) 18 SCC 47; Delhi Transport Corporation Vs W.P(C) 1910/2010 Pages 9 of 15 Rajbir Singh & Ors., passed in W.P. (C) No. 4856/2003, decided on 05.04.2010; Delhi Transport Corporation Vs Shyam Lal, passed in W.P. (C) No. 3633/2004, decided on 01.07.2010; and Birmati Vs Presiding Officer, Industrial Tribunal-II & Ors., reported as 2022 SCC Online Del 2891.

23. With these submissions, the learned counsel for the Respondent/Management prays for the dismissal of the writ petition.

LEGAL ANALYSIS

24. This Court has heard the arguments advanced by both the counsels for the parties and also examined the documents placed on record and the judgments relied upon by the parties.

25. In the present Writ Petition, the Petitioner/Workman is challenging the Award dated 15.10.2003 passed by the learned learned Labour Court. Vide the impugned award, the learned Labour Court was pleased to uphold the disciplinary proceedings conducted by the Respondent/Management against the Petitioner/Workman. While examining the validity of the disciplinary proceedings, the learned Labour Court was exercising the power vested in it under Section 11- A of the I.D Act. It is well settled principle of law that while exercising power under Section 11- A of the I.D Act, the satisfaction of the Labour Court regarding the alleged misconduct is important and the learned Labour Court can re-appreciate the evidence and substitute its own views. However, the jurisdiction of this Court under Article 226 is very limited while examining the Award passed by the learned Labour Court. This Court, while W.P(C) 1910/2010 Pages 10 of 15 exercising powers under Article 226 of the Constitution of India, cannot interfere with the factual findings of the learned Labour Court which are based on the appreciation of facts based on evidence adduced before it. This Court can interfere with the findings of the learned Labour Court only on limited circumstances, like violation of principles of natural justice, perversity of findings, lack of evidence etc.

26. This Court is examining the facts of the present case based on the above-mentioned legal principles. In the present case, the Petitioner/Workman admitted the charges levelled against him. Learned Labour Court examined the domestic enquiry conducted by the Respondent/Management and reached the conclusion that the charges levelled against the Petitioner/ Workman have been proved. The relevant portion of the impugned Award, reads as follows:

27. This Court examined the enquiry report and the evidence adduced by the parties before the learned Labour Court. As rightly observed by the learned Labour Court, the Petitioner/Workman admitted that he was absent during the relevant period due to his personal reasons. Hence there is an admission of guilt by the Petitioner/Workman. The only question to be examined is whether there was sufficient reason for the unauthorized absence of the Petitioner/Workman. The W.P(C) 1910/2010 Pages 12 of 15 Petitioner/Workman stated before the enquiry officer that he was absent due to the unfortunate death of his wife, father and uncle. However, in the leave applications submitted by the Petitioner/Workman, he had disclosed different reasons. The learned Labour Court noted these discrepancies and held that „the grounds were non-existent and further prove the facts that the workman had no cause for remaining absent for 140 days 1992’. Learned Labour Court arrived at such a finding based on the documents placed before it. Hence, this Court, while exercising jurisdiction under Article 226 of the Constitution, is not inclined to interfere with such factual findings arrived at by the learned Labour Court based on the evidence adduced before it.

28. This Court also examined the service record of the Petitioner/Workman which was part of the Labour Court record. The service record of the Petitioner/Workman shows that he was a habitual absentee. The Petitioner/Workman was inflicted with penalty of „stoppage of increment‟ 3 times earlier for taking leave without pay. In addition, he has been reprimanded and even inflicted penalty of Censure for his habit of taking leave without proper intimation to the competent authority. There were several complaints against the Petitioner/Workman which are reflected in his past record. A perusal of the past record shows the negligence, the lack of interest of the Petitioner/Workman and his misconduct.

29. In the present case, it has been argued by Mr. Mittal, learned counsel for Petitioner/Workman that once the approval W.P(C) 1910/2010 Pages 13 of 15 application under Section 33(2)(b) of the I.D. Act was dismissed and approval was not granted to the Respondent/Management, the order dated 23.09.1994 removing the Petitioner/Workman from service would be rendered having no effect as if it was never passed. Thus, the proceedings under Section 10 of the I.D. Act had become infructuous and the Impugned Award should not have been passed at the first place.

30. This Court does not agree with the contentions of the learned counsel for the Petitioner/Workman. It is well settled principle of law that the scope of enquiry under Section 33 (2) (b) of the I.D Act and Section 10 of the I.D Act are totally different. In view of the decision of Supreme Court in John D’ Souza (Supra) and decisions of this Court in Delhi Transport Corporation Vs Rajbir Singh & Ors., passed in W.P. (C) NO. 4856/2003, decided on 05.04.2010; Delhi Transport Corporation Vs Shyam Lal, passed in W.P. (C) No. 3633/2004, decided on 01.07.2010; and Birmati Vs Presiding Officer, Industrial Tribunal-II & Ors., reported as 2022 SCC Online Del 2891, it is settled law that the proceedings under Section 33(2)(b) and Section 10 of I.D. Act are distinct proceedings, having distinct purpose. The Hon‟ble Supreme Court in John D’ Souza (Supra), categorically held that the enquiry envisaged under Section 33 (2) (b) of the I.D. Act is a limited enquiry and is in the nature of summary proceedings. It is well settled principle of law that the proceedings under Section 33(2) (b) of the I.D Act will not act as res judicata for the proceedings under Section 10 of the I.D Act. Further this Court vide separate W.P(C) 1910/2010 Pages 14 of 15 Judgment in W.P.(C) No. 6494/2003, allowed the approval application filed by the Petitioner/Management. Therefore, the Impugned Award did not become a nullity as claimed by the Petitioner/Workman.

31. This Court agrees with the findings of the learned Labour Court made in the Impugned Award. Further, the Petitioner/Workman himself has not been able to point out any error apparent on face of record in the Impugned Award. In fact, the Petitioner/Workman has not even taken a single ground pointing any irregularity in the Impugned Award. The sole ground taken by the Petitioner/Workman was that the learned Labour Court should not have passed the Impugned Award in the first place when the approval application of the Respondent/Management was already dismissed. However, this Court does not agree with the averments of the Petitioner/Workman in view of the reasons earlier discussed above.

32. In view of the detailed discussion hereinabove, this Court is not inclined to interfere with the Impugned Award while exercising its limited jurisdiction under Article 226 of the Constitution of India as the Petitioner/Workman failed to show any irregularity or any error apparent on face of record. Hence the present Writ Petition is dismissed. No order as to costs.

GAURANG KANTH, J. APRIL 21, 2023