IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER Writ Petition (C) No. 280/1991 Reserved on : 20.03.2007 Date of decision : 25.04.2007 IN THE MATTER OF : D.T.C. Petitioner Through : Mr.Alok Shankar and Mr.Ranjit Sharma, Advocates Versus DELHI ADMINISTRATION & ORS. Respondents Through Mr.S.C.Singhal, Advocate for respondent No.3. HIMA KOHLI, J. The present writ petition is directed against the award dated 26th February 1990, passed by the Presiding Officer, Labour Court, whereunder it was held that the dismissal of the workman, respondent No.3 herein, was not preceded by a proper enquiry and the petitioner management (respondent therein), had not made any prayer to lead evidence to prove the allegations against respondent No.3 (hereinafter referred to as `the respondent workman'), and accordingly it was held that the dismissal of the respondent workman was unlawful and mala fide and the petitioner was directed to reinstate the respondent workman with continuity of service and full back wages from the date of termination. 2. Facts relevant for disposing of the present petition are as follows. The respondent workman was in employment of the petitioner corporation as a Conductor. On 1st August, 1973, while the respondent workman was on duty, he was challaned by the checking staff on the allegation that he had collected 10 paise
from a lady passenger as against the actual fare of 15 paise and that he had misappropriated the said amount by not issuing a ticket to her. A domestic enquiry was held against him and ultimately he was dismissed from service on 15th July, 1976. Consequently the respondent workman raised an industrial dispute, pursuant to which the matter was referred to the Labour Court vide reference dated 18th February, 1982. The respondent workman challenged the enquiry on the grounds that the alleged charge sheet was not served by a competent person, that a copy of the challan report was not given to him and that the enquiry officer was not impartial. As against this, a written statement was filed by the petitioner corporation, wherein it justified its action and stated that the enquiry was free and fair. It was further pointed out that they had made an application under Section 33 (2)(b) of the Industrial Disputes Act, 1947 (for short `the Act') for the approval of dismissal and that the Industrial Tribunal having allowed the said application vide its order dated 6th July, 1982, the same would apply as res judicata in a reference under Section 10, especially in view of the fact that the said order was challenged in W.P.(C) 3967/82, which was dismissed by this Court vide its order dated 24th February, 1983. Rejecting the aforementioned contentions of the petitioner corporation, the Labour Court passed the impugned award dated 26th February, 1990, holding inter alia that the enquiry was illegal and unjustified and directed the respondent workman to be reinstated with full back wages. 3. Learned counsel for the petitioner corporation sought to challenge the award on the ground that while adjudicating upon a dispute arising out of the same disciplinary action referred under Section 10 of the Act, the learned Labour Court erroneously ignored the order of the Industrial Tribunal under Section 33(2)(b) of the Act qua the validity of the inquiry, on the misplaced assumption that the scope of enquiry under Section 33(2)(b) of the Act is limited to finding out a prima facie case. The counsel for the petitioner relied upon a judgment of the Constitution Bench of the Supreme Court in the case of Bengal Bhatdee Coal Co., Ltd. v. Ram Probesh Singh and Ors., reported as AIR 1964 SC 486 in which an Industrial Dispute referred under Section 10 of the Act was heard after approval for termination from service had already been granted under Section 33(2)(b)of the Act. The Supreme Court held that by granting approval under Section 33(2)(b) of the Act, the Industrial Tribunal could not subsequently hold that the inquiry was vitiated. It was further submitted that in view of the fact that the order of the Tribunal granting approval to the action of the management under Section 33(2)(b) of the Act was challenged by the workman by way of a writ petition, being W.P.(C) 3967/82 which was dismissed by this court vide its order dated 24th February, 1983, the same had attained finality and acted as res judicata in so far as the question of the validity of the enquiry was concerned. Therefore, the same question could not be considered afresh by the
Labour Court and it could not have come to different conclusion than that arrived at in the proceedings under Section 33(2)(b) of the Act, particularly so because an order under Section 33(2)(b) is a final order and not merely a preliminary order. 4. It was further submitted that the Labour Court erred in taking the view that the scope of enquiry in proceedings under Section 33(2)(b) of the Act is limited to finding out a prima facie case. Reliance was placed on the judgment of the Supreme Court in the case of Martin Burn Ltd. v. R.N. Banerjee, reported as 1958 SCR 514 to state that prima facie case involves the process of seeing whether the enquiry into the charges against the workman was held in accordance with law and then to see whether on the facts garnered in the course of enquiry, the decision of the disciplinary authority was a probable one and that it did not suffer the vice of perversity. It was further submitted that to satisfy itself on the making out of a prima facie case does not mean that the Tribunal is entitled to see only whether the enquiry was held at all or not, rather it implies examining that whether such an enquiry was held in accordance with law. It was also averred by the counsel for the petitioner that in proceedings under Section 33(2)(b) of the Act, the Tribunal has to be satisfied that a case is made out for approval of the action of the employer and is well supported by a fair and proper enquiry, and such satisfaction is not merely of a prima facie nature but is in the nature of a detailed investigation. Support was sought to be drawn from the judgment rendered by the Supreme Court in the case of Delhi Cloth and General Mills Co. v. Ludh Budh Singh, reported as (1972) 1 SCC 595 to state that once the enquiry proceedings are held to be valid and proper, the question of considering the evidence on merits does not arise. It was stated that the ambit and scope of enquiry in an application under Section 33 and in a reference under Section 10(1) of the Act is the same and that whether the proceedings are under Section 33(2)(b) or under Section 10 of the Act, the Labour Court has to first decide the preliminary issue regarding the validity of the domestic enquiry. It was stated that the only difference between the two proceedings is that while in the former proceedings the Tribunal cannot proceed on merits of the case if the preliminary issue is decided in favour of the management, in the latter proceedings the Tribunal will decide the case on merits so as to adjudicate upon the rights and obligations of the parties, and if at all the question regarding the validity of the enquiry is held against the management, in that case the Tribunal would give an opportunity to the management to prove its allegations against the workman. However, it was submitted, that in the present case, none of the parties led any evidence on merits of the case, as the petitioner corporation relied on the enquiry proceedings and the order dated 6th July, 1982 passed under Section 33(2)(b) of the Act.
5. Lastly, it was contended that in the present case, the respondent workman had availed of the benefit under Section 17B of the Act, which application was allowed by this Court vide its order dated 19th November,1991, and therefore the findings of the Tribunal in granting full back wages to the respondent workman needs to be interfered with as grant of back wages is not a necessary result of reinstatement. It was argued that in the absence of the Tribunal having discussed the pleadings of the respondent workman with regard to his entitlement to back wages, the Tribunal was not justified in granting reinstatement with full back wages to the respondent workman. 6. Learned counsel for the respondent workman on the other hand, vehemently supported the impugned award and submitted that the award was based on correct appreciation, understanding and application of law and does not deserve any interference. It was submitted that the question of leading additional evidence does not arise at all in view of the fact that the petitioner corporation failed to produce even the records of the enquiry, which fact has been taken note of in the impugned award. 7. It was argued that the findings recorded in proceedings under Section 33(2)(b) of the Act regarding the validity of a domestic enquiry cannot be termed as res judicata in a reference under Section 10 of the Act, even though the questions that arise for consideration are the same. Reliance was placed on the following judgments: (i) Messrs. East Asiatic Co. (I) (P) Ltd. Madras v. The Workmen employed in E.A.C. (I) (P) and Others, AIR 1965 Mad 221(Mad) (ii) The Associated Cement Co. Ltd. Kymore Cement Works v. Presiding Officer, Labour Court No. 1 Jabalpur and another, 1973 Lab I.C. 982(M.P.) (iii) The Management of M/s. Amalgamated Elec. Co. Ltd., Belgaum Branch v. Workmen of M/s. Amalgamated Elec. Co. Ltd., Belgaum Branch and Ors., 1975 Lab IC 879(Kar) (iv) Lagan Jute Machinery Co. Ltd. v. Eighth Industrial Tribunal, 1988(1)LLN421(Cal) (v) Delhi Transport Corporation Vs. Sh.Ram Kumar, (1982) I L.L.N. 302 (Del.) (vi) Mgmt. Of M/s. Orissa Road Transport Company Ltd. v. M.V. Rao & anr., 1993 (1) LLJ 468(Ori).
8. Attention of the court was drawn to para 20 of the order of the Industrial Tribunal dated 6th July, 1982, in the proceedings under Section 33(2)(b) of the Act, wherein the Tribunal has given liberty to the respondent workman to raise an industrial dispute regarding his alleged termination from service by moving the conciliation machinery, and contended that from a perusal of the said order itself, it is clear that findings in the said order were not intended to act as res judicata in any other subsequent proceedings. 9. I have heard the counsels for the parties and have carefully perused the records of the case, including the pleadings of the parties, the impugned award and the judgments relied on by the parties. The admitted position is that the respondent workman preferred an application under Section 17B of the Act seeking the payment of the amount due to him upto the date of award and future salary. The said application was allowed vide order dated 19th November, 1991 passed by a Single Judge of this court against which the petitioner corporation filed a Letters Patent Appeal being LPA No.3/1992 which was disposed of by way of a consent order dated 11th February, 1992. The respondent workman was paid an amount of Rs.2,09,744/- as claimed in the application under Section 17B of the Act on account of back wages for the period of July, 1976 to July, 1990 and thereafter further salary was paid to him on a monthly basis. Such being the position, the counsel for the petitioner has not pressed the said issue and the limited issue that arises for consideration herein is as to whether approval accorded to the act of the petitioner corporation in the proceedings under Section 33(2)(b) of the Act acts as res judicata in a subsequent reference of the same dispute to another Tribunal/Labour Court for adjudication under Section 10 of the Act. 10. It is now a settled position of law in view of the consistent position taken by the Supreme Court and the various High Courts in this regard, that the finding recorded in a proceeding under Section 33(2)(b) of the Act in respect of a domestic enquiry cannot act as res judicata in a reference under Section 10 of the Act, even though the questions that arise for consideration are the same. In the present case, there is no error in the findings arrived at by the Labour Court on the said issue since it is based on a correct appreciation of law. Reliance was rightly placed by the Labour Court on the judgment of the Karnataka High Court in the case of The Management of M/s. Amalgamated Elec. Co. Ltd., Belgaum Branch (supra) wherein the court held that the scope of enquiry under Section 33(2)(b) is of a limited character. While taking this view, the High Court referred to a judgment rendered by the Supreme Court in the case of Punjab National Bank Ltd. v. All India Punjab National Bank Employees Federation, reported as AIR 1960 SC 160, wherein the
scope of enquiry made by a Tribunal under Section 33(2)(b) and the scope of enquiry made in a reference made under Section 10 of the Act has been dealt with. In paras 24 and 25 of the said decision it has been laid down as follows: Para 24: Where an application is made by the employer for the requisite permission under s. 33 the jurisdiction of the tribunal in dealing with such an application is limited. It has to consider whether a prima facie case has been made out by the employer for the dismissal of the employee in question. If the employer has held a proper enquiry into the alleged misconduct of the employee, and if it does not appeal that the proposed dismissal of the employee amounts to victimisation or an unfair labour practice, the tribunal has to limit its enquiry only to the question as to whether a prima facie case has been made out or not. In these proceedings it is not open to the tribunal to consider whether the order proposed to be passed by the employer is proper or adequate or whether it errs on the side of excessive severity; nor can the tribunal grant permission, subject to certain conditions, which it may deem to be fair. It has merely to consider the prima facie aspect of the matter and either grant the permission or refuse it according as it holds that a prima facie case is or is not made out by the employer. Para 25: But it is significant that even if the requisite permission is granted to the employer under s. 33 that would not be the end of the matter. It is not as if the permission granted under s. 33 validates the order of dismissal. It merely removes the ban; and so the validity of the order of dismissal still can be, and often is, challenged by the union by raising an industrial dispute in that behalf. The effect of compliance with the provisions of s. 33 is thus substantially different from the effect of compliance with s. 240 of the Government of India Act, 1935, or Art. 311(2) of the Constitution. In the latter classes of cases, an order of dismissal passed after duly complying with the relevant statutory provisions is final and its validity or propriety is no longer open to dispute; but in the case of s. 33 the removal of the ban merely enables the employer to make an order of dismissal and thus avoid incurring the penalty imposed by s. 31(1). But if an industrial dispute is raised on such a dismissal, the order of dismissal passed even with the requisite permission obtained under s. 33 has to face the scrutiny of the tribunal. 11. The court in arriving at a conclusion that the findings recorded under Section 33 (2) (b) of the Act cannot act as a res judicata in respect of proceedings pending under a reference made under Section 10 of the Act, draws support from a judgment of a Division Bench of this Court in the case of Ram Kumar (supra), the issue involved therein being the same as that in the present case. Relying on the judgment of the Supreme Court in Automobile Product of India v. Rukmaji Bala, reported as AIR 1995 SC 258, it was observed by the court that the jurisdiction under Section 33 of the Act is only to impose a ban on the right of the employer and the
only thing that the authority is called upon to do is to grant or withhold the permission, i.e., to lift or maintain the ban and that the scope of jurisdiction under Section 33(2)(b) of the Act is very limited in nature. The court referred to the decision of the Supreme Court rendered in the case of Atherton West and Co. v. S. M. Mazdoor Union reported as AIR 1953 SC 241 where it was held that the right to raise an industrial dispute would continue notwithstanding the permission granted under clause (23) of the Uttar Pradesh Industrial Disputes Act (which is para materia to Section 33 of the Act) and despite such a permission, the workman who had been dismissed or discharged would be entitled to raise an industrial dispute. The decision of the Supreme Court in the case of G Mckinzie and Co. Ltd. v. Its Workmen, reported as AIR 1959 SC 389 was also taken note of, wherein it was held that proceeding under Section 33 does not confer any jurisdiction on a Tribunal to adjudicate on a dispute but it merely empowers the Tribunal to give or withhold permission to the employer during the pendency of an industrial dispute to discharge or punish a workman concerned in the industrial dispute. Finally this court analysed the question of res judicata and the finality of findings given in a proceedings under Section 33(2)(b) vis-à-vis proceedings under Section 10 of the Act, with reference to the amendment brought about in the Act by Section 11-A, and held as under: Para 8:. The scope of enquiry under S. 10 now is much wider than the scope of enquiry for according or refusing approval under S. 33(2)(b). Section 11A now permits a Tribunal even in cases where enquiry has been held by an employer and a finding of misconduct arrived at to differ from that finding in a proper case, and hold that no misconduct is proved. The tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal and it can even impose lesser punishment instead. The power to even interfere with the punishment is conferred on the Tribunal by S. 11-A. Vide Workman of Firestone Tyre and Rubber Co. v. Management, 1973-I. L.L.N. 278. Mr. Malhotra, however, sought to urge that Section 11A has made no difference because the same is only procedural and the same powers can be exercised by the Labour Court or the Tribunal while disposing of the matter either under Section 33(2)(b) or under Section 10 of the Act. The argument is misconceived. To invoke Section 11-A it is necessary that an industrial dispute of the type mentioned therein should have been referred to an Industrial Tribunal for adjudication. Vide 1973-I L.L.N. 278. The Supreme Court has already laid down that what is done under Section 33(2)(b) is not adjudication. That S. 11A has not enhanced the power of a Tribunal while dealing with an application under S. 33 was also emphasised in 1973-I L.L.N. 278, wherein it was observed that: It is to be noted that an application made by an employer under S. 33(1) for permission or S. 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions. No change has been effected in that section by the Amendment Act.
Para 9: Thus the amendment by S. 11-A having not brought any change of law as laid down by the Supreme Court in earlier decisions and the S. 11-A having enhanced the power of Tribunal when adjudicating in under S. 10, the argument that the findings while dealing with the grant of approval or permission to the action of discharge or dismissal will operate as a bar of res judicata in a reference under S. 10 or the Industrial Disputes Act is without substance and is rejected. The further argument of Mr. Malhotra that at least the validity of the enquiry and the bona fides of the employer which have been upheld by the Labour Court under S. 33 should operate as res judicata on a reference under S. 10 are equally of no avail because it is not possible to split up and detect the finding given under S. 33 to attribute the quality of finality to some findings and not to others. The whole arguments against the acceptance of plea of res judicata is that the scope of proceedings under S. 33 or 10 is different and the relief is also different. It is well-settled that the jurisdiction of an authority in application under S. 33 is of a limited character and not of the appellate or a revisionary character. The position under S. 10 is now completely changed by S. 11-A wherein the Tribunal can now itself reappraise the evidence and act almost as a Court of appeal. Thus the scope being so different the plea of res judicata advanced by Mr. Malhotra has no substance. 12. The position of law as discussed above has been followed by the Orissa High Court in the case of Mgmt. of M/s. Orissa Road Transport Company Ltd (supra), wherein it has been held as under: Para 3: Mr. Murthy appearing for the employer in O.J.C No. 2938 of 1988 argues with vehemence that in view of the order of approval of the Tribunal under Section 33(2) (b) of the Industrial Disputes Act which was confirmed by this Court in O.J.C. No. 1445 of 1979, the Tribunal was incompetent to enter into an enquiry into the said matter in a reference under Section 10 and, therefore, the award of the Tribunal must be held to be without jurisdiction. This question has been recently considered by us at length in a writ application filed by the self-same employer in O.J.C. No. 3375 of 1990 The Management of Orissa Road Transport Company Limited v. The Workman T. Bangali Patra and Anr.), disposed of on September 16, 1991. After noticing a catena of decisions of different High Courts as well as of the Supreme Court and analysing the power of Tribunal under Section 33(2) (b) of the Industrial Disputes Act and as well as such power of the Tribunal under Section 10 of the said Act, it was held that an order of approval under Section 33(2) (b) could not be a bar to such a reference and when the reference is made, the same had to be decided on its own merits in accordance with law. Following the aforesaid decision of ours, we reject the first submission of Mr. Murthy, the learned counsel for the employer-petitioner.
13. The petitioner s reliance on the judgment in the case of Martin burn Ltd. (supra) is misplaced as in the said case, the Supreme Court interpreted the expression prima facie with respect to Section 22 of the Act, and not in the context of findings given under Section 33(2)(b) of the Act acting as res judicata in proceeding under Section 10 of the Act, as is the question in the present case. Even in that context it was held that a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed and that while determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. Therefore, even if the meaning of the expression prima facie as has been laid down by the Supreme Court in the aforesaid case is sought to be applied in the present case, still the position remains that the prima facie conclusion arrived at in proceedings under Section 33(2)(b) of the Act is neither final and binding nor could it be considered to be the only conclusion which could be arrived at for the principles of res judicata to come into play. 14. The meaning of the expression prima facie with reference to Section 33(2)(b) of the Act and its meaning in contradistinction to that of adjudication, was considered at length by a full bench of the Calcutta High Court in the case of Lagan Jute Machinery Co. Ltd. (supra), and the court after considering the decision of Supreme Court in the case of Matin Burn Ltd. (supra), observed as below: Para 24: The expression prima facie means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded. [see Black s Law Dictionary] Para 25: The decisions of the Supreme Court emphasized a prima facie case in contradistinction to adjudication. The Supreme Court in Marin Burn Ltd. v. R.N. Banerjee [1958-I L.L.J. 247] held that A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and as to whether that was the only conclusion which could be arrived at on that evidence.
15. After so analyzing the sense that the word prima facie renders, the Calcutta High Court opined that if the ultimate conclusion of the Tribunal or the appropriate authority exercising the power under Section 33(2)(b) of the Act is a prima facie one, then in arriving at such a prima facie conclusion, a finding made upon any issue either as regards fairness and propriety of the domestic enquiry or with regard to the misconduct of the workman cannot be held to be conclusive. Accordingly it was held that in considering the question of res judicata, the determinative factor is whether the authority under Section 33(2)(b) of the Act adjudicates any issue or not. Thus if the distinction between prima facie case and adjudication is maintained, then an order under Section 33(2)(b) would not operate as res judicata in a reference under Section 10 of the Act. 16. The petitioner has also wrongly placed reliance on the following para in case of Bengal Bhatdee Coal Co. (supra): Para 7:The tribunal apparently held that the inquiry was proper, though it has not said so in so many words in its award. It may be added that it could hardly do otherwise, for it had already approved of the action taken on applications made under s. 33(2)(b) of the Act. If the inquiry had not been proper, the tribunal would not have approved of the dismissals. But the tribunal held that this was a case of victimisation. It therefore set aside the order of dismissal and ordered the reinstatement of the thirteen workmen within one month of its order becoming operative and ordered that they should be treated as on leave without pay during the period of forced unemployment. It did not grant back wages as the workmen had also contributed to their forced unemployment to some extent. 17. The aforesaid observation of the Supreme Court, it is contended, lays down that a finding given under section 33(2)(b) of the Act, would be binding on any tribunal or Labour Court dealing with the same set of facts in proceedings under Section 10 of the Act. However, this decision in no way, casts any doubt on the position of law enunciated by the Supreme Court in the case of Punjab National Bank (supra ) and Delhi Cloth and General Mills Co(supra). In this regard the following observations of this court in the case of Ram Kumar (supra) are noteworthy: Para 6:... Thus the law is well-settled that S. 33 only imposes a ban. An order of dismissal or discharge passed even with the permission or approval of the Tribunal can form the subject of a dispute and as such referred for adjudication. See Workmen of Fire-stone Tyre and Rubber Co. v. Management. [1973-I L.L.N. 278]. The main thrust of the argument of Mr. Malhotra, however, seems to rest on the observations made in Bengal Bhatdee Coal Co. v. Ram Prabesh Singh. [1963-I L.L.J. 291]. In that case while disposing of an appeal against the dismissal of a workman which was referred under S. 10 of the Act challenge was made that no finding had been given by
the Tribunal that the enquiry was proper and this vitiated the award and that the dismissal was mere victimization. In rejecting this the Supreme Court observed that the Tribunal had apparently held that the enquiry was proper though it has not said so in so many words in its award, nor did it find that the finding of the enquiry officer were perverse or baseless". It, however, also added: "that it could hardly be otherwise as it had already approved of the action taken on an application made under S. 33(2)(b) of the Act and if the enquiry had not been proper the Tribunal would not have approved of the dismissal." Mr. Malhotra says that this observation means that if an approval has been given under S.33(2)(b) the finding about enquiry and charges being proved amounts to res judicata in subsequent proceeding under Section 10. While we cannot read this observation to lay down as if by a side wind that reference under Section 10 of the Act in cases where the approval has been obtained under Section 33 (2) (b) is incompetent, because that is the real effect of acceptance of this argument. But this would be against the settled law laid down by the various Supreme court decisions both before and after the decision in the Bengal Bhatdee case (vide supra), that notwithstanding the approval obtained under S. 33C (2)(b) for the dismissal of an employee, this dispute can form the subject of a dispute and of a reference under S. 10 for adjudication. 18. The facts and observation of the Supreme Court in Bengal Bhatdee case (supra) are not applicable in the present case, because firstly that case dealt primarily with the issue of victimization and secondly because therein the proceedings under Section 33(2)(b) were held before the same Tribunal before whom the proceedings under Section 10 of the Act took place. It was in this context, that the Supreme Court held that the Tribunal could not give inconsistent findings on the issue of the validity of the same enquiry proceedings that was in question before it in both the proceedings. This case, therefore, can be distinguished, both on facts as well as on law, from the present case. 19. In view of the aforesaid discussion and the position of law as enunciated in the judgments referred to hereinabove, this court has no hesitation in holding that the findings of the Labour Court as regards this issue are correct and do not merit any interference by this Court. The scope of proceedings under Section 33 (2) (b) are quite different from the scope of proceedings under Section 10 of the Act. The findings recorded under Section 33 (2) (b) cannot be a bar to a reference under Section 10 of the Act, as the latter has to be decided on its own merits. The writ
petition, therefore, fails and is dismissed while leaving the parties to bear their own costs. Sd/- ( HIMA KOHLI ) JUDGE