Delhi High Court (JULY 11, 2001) 2001 (TLS)125320 2001-DLT-93-420 :: 2001-AD (Del)-6-289 DELHI TRANSPORT CORPORATION Vs. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL NO. II VIKRAMAJIT SEN ( 1 ) THE common thread in all the present litigation is the fact that the Delhi Transport Corporation (hereinafter referred to as D. T. C.) had dismissed the workmen/respondents and since industrial disputes were then pending with their workforce, they had unsuccessfully applied with the Authority for its approval for this terminatory action under Section 33 (2) (b) of the Industrial Disputes Act 1947 (for short i. D. Act ). On this rejection, the D. T. C. has filed writ Petitions under Article 226 of the Constitution challenging the orders declining the grant of approval. In some petitions an order of stay of these impugned orders was prayed for and granted. The workmen/respondents have, however, filed applications under Section 17-B of the I. D. Act praying for the grant of wages, the maintainability of which has been vociferously challenged. ( 2 ) COMMON law recognizes the untrammelled freedom to contract. One aspect of it is the unfettered liberty to hire and fire" and this has even been incorporated into the Specific Relief Act which enunciates that injunctory relief ought not to be granted if it tantamounts to the enforcement of personal services. However, gradually it has been jurisprudentially accepted that where two parties are of such disparate social or economic status as would render illusory this freedom to contract, it is necessary that law must step in to effect a balance between them. Labour laws and rent Control legislation, to cite two examples, thus evolved in the last century and came to constitute an extremely important branch of law which has been most frequently invoked. Now while there is still unrestricted capacity to hire, labour laws have introduced rigours on the right to fire. In the case of workmen within the contemplation of the I. D. Act their services can be terminated on the grounds of ill-health or by way of punishment, or by their retrenchment as defined in Section 2 (oo) of the Act, or by their retirement. The introduction of Section 2 (oo) (bb) in 1984 merely clarifies that non-renewal of a contract of employment in terms of the contract would not amount to retrenchment. The introduction of Section 2 (oo) (bb) in 1984 merely clarifies that non-renewal of a contract of employment in terms of the contract would not amount to retrenchment. When it was found that contracts of service were structured and devised by Managements in such a manner as to defeat the protection sought to be imparted by the I. D. Act, Parliament again stepped in to alleviate the plight of the workmen, in the terms of the Contract Labour (Regulation and Abolition), Act 1970. There is yet another restraint placed on the capacity of the Management to terminate the services of a workman, incorporated in Section 33 (2 ) (b) of the I. D. Act. It is however conditional, and intended to plug any unfair labour practice that may be adopted to subjugate the labour already embroiled in an industrial dispute. There is yet another restraint placed on the capacity of the Management to terminate the services of a workman, incorporated in Section 33 (2 ) (b) of the I. D. Act. It is however conditional, and intended to plug any unfair labour practice that may be adopted to subjugate the labour already embroiled in an industrial dispute. Since a consideration of Sections 17-B and 33 (2) (b) arises in all these petitions, they are extracted below for the convenience of ready reference: 17-B Payment of full wages to workman pending proceedings in higher courts.- where in any case, a Labour court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court; provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the court shall order that no wages shall be payable under this section for such period or part, as the case may be.) 33 (2) (b) - for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. ( 3 ) IN Straw Board Manufacturing Co. Ltd, Sultanpur vs. Govind, AIR 1962 SC 1500 , a Bench of three Learned judges of the Hon ble Supreme Court observed that for the dismissal/discharge of workman to be legally proper and legitimate, the provisions of Section 33 of the industrial Disputes Act must be kept in perspective. ( 3 ) IN Straw Board Manufacturing Co. Ltd, Sultanpur vs. Govind, AIR 1962 SC 1500 , a Bench of three Learned judges of the Hon ble Supreme Court observed that for the dismissal/discharge of workman to be legally proper and legitimate, the provisions of Section 33 of the industrial Disputes Act must be kept in perspective. In those cases falling within the purview of sub-section (1) prior permission of the Authority is mandatory whereas under sub-section (2) post-facto approval is essential. In the latter category of cases it opined that "though the employer was given freedom, it was not complete and he could only exercise the power of discharge or dismissal subject to the condition laid down in the proviso". The following observations in this judgment are very significant for the purpose of a decision in the context of Section 17-B: "it is however urged on behalf of the respondent that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the tribunal refuses to approve of the action the workman would be left with no remedy as there is no provision for reinstatement in s. 33 (2 ). We however see no difficulty on this score. If the tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision as to reinstatement is necessary and by the very fact of the tribunal not approving the action of the employer, the dismissal or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer. In that sense the order of discharge or dismissal passed by the employer does not become final and conclusive until it is approved by the tribunal under S. 33 (2 ). " ( 4 ) THEREAFTER, in Tata Iron and Stee1 Co. Ltd. vs. S. N. Modak, AIR 1966 SC 380 , the factual matrix was that the main industrial dispute, which had necessitated the filing of an application under Section 33 (2) (b) had been decided, while the latter was still pending adjudication. " ( 4 ) THEREAFTER, in Tata Iron and Stee1 Co. Ltd. vs. S. N. Modak, AIR 1966 SC 380 , the factual matrix was that the main industrial dispute, which had necessitated the filing of an application under Section 33 (2) (b) had been decided, while the latter was still pending adjudication. This coordinate Bench of the Hon ble supreme Court held that the latter application had not been rendered infructuous, and while doing so it also opined as under : "it is, however, urged by the learned Solicitor-General that it would be futile to allow the present application to proceed any further, because the appellant can proceed to dismiss the respondent notwithstanding the fact that the Tribunal does not accord its approval to its order in question. This argument, in our opinion, is misconceived. It cannot be denied that with the final determination of the main dispute between the parties, the employer s right to terminate the services of the respondent according to the terms of service revives and the ban imposed on the exercise of the said power is lifted. But it cannot be overlooked that for the period between the date on which the appellant passed its order in question against the respondent, and the date when the ban was lifted by the final determination of the main dispute, the order cannot be said to be valid unless it receives the approval of the Tribunal. In other words, the order being incomplete and inchoate until the approval is obtained, cannot effectively terminate the relationship of the employer and the employee between the appellant and the respondent; and so, even if the main industrial dispute is finally decided, the question about the validity of the order would still have to be tried and if the approval is not accorded by the tribunal, the employer would be bound to treat the respondent as its employee and pay his full wages for the period even though the appellant may subsequently proceed to terminate the respondent s services. Therefore, the argument that the proceedings if continued beyond the date of the final decision of the main industrial dispute would become futile and meaningless cannot be accepted. "over a decade later, M/s , Punjab Beverages Pvt. Ltd. Chandigarh vs. Suresh Chand and another. , AIR 1978 SC 995 was decided without any reference to these two pronouncements of previous coordinate Benches. "over a decade later, M/s , Punjab Beverages Pvt. Ltd. Chandigarh vs. Suresh Chand and another. , AIR 1978 SC 995 was decided without any reference to these two pronouncements of previous coordinate Benches. This judgment is uniformly and invariably relied upon by counsel appearing for the Managements in support of their contention that even where approval under Section 33 (2) (b) has not been given and this has been assailed in writ petitions before the High Court, orders under section 17-B cannot be passed. The Court observed as follows - "where, however, the application for approval under Section 33 (2) (b) is withdrawn by the employer and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal. The Tribunal having had no occasion to consider the application on merits, there can be no question of the Tribunal refusing approval to the employer. It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift the ban. The withdrawal of the application for approval stands on the same footing as if no application under Section 33 (b) has been made at all. " ( 5 ) WHAT is often ignored and glossed over is that in that case the Hon ble Supreme Court had to unravel the interplay between Sections 33 (2) (b) and 33 (c) (2) of the i. D. Act. The application under the former section was withdrawn by the Management; the sequel was that the concerned workman filed executive proceedings for calculating his dues under the latter. The Court was not seized of a situation where there was an extension of the original proceedings under Section 33 (2) (b) in the High Court via Article 226 of the Constitution. In my opinion this makes all the difference. Even if there are some observations in favour of the Managements in the Punjab Beverages case, they would not be directly applicable to those instances where there is an extension of the Section 33 (2) (b) proceedings by the filing of writ petitions by the Management. Any other understanding would render the judgment irreconcilable to those delivered in the Straw Board and TISCO cases (supra ). Any other understanding would render the judgment irreconcilable to those delivered in the Straw Board and TISCO cases (supra ). An extrapolation of the ratio in Punjab beverages (supra) into an application of the workman under Section 17-B, in writ proceedings filed by the management to salvage its unsuccessful foray under section 33 (2) (b), would be inappropriate and misplaced. The opinion in this case may be extended even to those cases where the Management has not obtained approval for the dismissal/discharge in its application under Section 33 (2) (b), even if it not restricted to cases where such application has been withdrawn. The remedy for the workman would then be to either raise a dispute under section 10 or Section 33-A. This would not be possible where the application under Section 33 (2) (b) is pending adjudication before the Labour Court, or is engaging the scrutiny of the High Court by way of the Management s writ petition. ( 6 ) THE first question to be answered is whether the rejection of the application under Section 33 (2) (b) for approval of the workman s dismissal is an "award in the contemplation in Section 17-B. As contended by Learned counsel for the D. T. C. if the rejection of approval is not an award, then the Court would not possess jurisdiction to pass orders for the payment of wages. One must at-once advert to the definitions contained in the Act. Section 2 (b) thereof mentions that award" means an interim or a final determination of any industrial dispute or any question relating thereto by any Labour Court, Industrial Tribunal or National industrial Tribunal and includes an arbitration award made under Section 10a. " ( 7 ) IN Punjab Beverages (supra), consequent upon the withdrawal of the Management s application under Section 33 (2) (b) there was no adjudication or compliance with that statutory provision, thus immediately attracting the provisions of Section 33-A. where however, the authority has declined to grant its approval for the dismissal or discharge of the workman concerned after due adjudication it would be illogical to construe the legal provisions as requiring the workman to once again rake up this issue either by recourse to Sections 10 or 33-A. The two situations are altogether dissimilar. The approval envisaged under Section 33 (2) (b) is expected to be predicated on a prima facie view in contradistinction to an appellate view. where, even on an overview the dismissal is found wanting, it would be fair to presume for all practical purposes that the dismissal does not conform to legal requirements. If the principles of res judicata are applied, it would at once bar a fresh consideration of this contentious issue either under Section 10 or Section 33-A, or for that matter, any other provision of law. The logical conclusion would be that the workman continues in service, fully entitled to his wages and other benefits. Section 33 (2) (b) cannot be converted into a weapon of oppression by rendering the workman vulnerable to double jeopardy , i. e. first proving the illegality of his termination (even on a prima facie view) in 33 (2) (b) proceedings and then again having to prove this point in other proceedings, where there is an adjudication in favour of the workman he should not be pushed from pillar to post in order to recover his wages. In S. Ganaparthy and others vs. Air India and another, 1993 lab. I. C. 1966, the Hon ble SupremeCourt has in summation observed that the "relationship of employer and employee is not effectively terminated by the passing of the order of discharge or dismissal until approval thereto in terms of Section 33 (2) (b) is accorded by the Tribunal. Proceedings under this section are not empty and inconsequential formalities. It is one thing to say that the three conditions of section 33 (2) (b) must be formally complied with, but quite unacceptably another, that once this formality is completed the outcome or decision in the adjudication has no legal efficacy. ( 8 ) THE exception to the proposition that proceedings under Section 33 (2) (b) finally decides the dispute surrounding the dismissal/discharge of the workman is found in the extraordinary facts in the Punjab Beverages (supra) case where the application itself was withdrawn by the Management. But the significance is obvious on the withdrawal of the application there was neither any adjudication nor any formal compliance. It is because of the latter event that Section 33~a is attracted. An order passed under Section 33 (2) (b) has therefore all the characteristics and concomitants of an award as defined in the I. D. Act. But the significance is obvious on the withdrawal of the application there was neither any adjudication nor any formal compliance. It is because of the latter event that Section 33~a is attracted. An order passed under Section 33 (2) (b) has therefore all the characteristics and concomitants of an award as defined in the I. D. Act. This is al,so the view of two different Division Benches of the High Court of calcutta, to be found in Samser Ali vs. Kesoram industries and Cotton Mills Ltd. and another, 1988 - I llj 1 and in Bata India Ltd. vs. Seventh industrial Tribunal W. B and Other, 1995 -I - LLJ 144. The next contention is that in declining its approval under Section 33 (2) (b) the award of the Labour court/tribunal does not order a reinstatement of the workman as it would in answering a reference under section 10. The argument is that if no reinstatement is directed. Section 17-B is not attracted. Over the years courts have granted relief similar and analogous to that envisaged in Section 17-B de hors this provision. In fact. Section 17-B was only recently incorporated into the I. D. Act by amendment. In Bharat Singh vs. Management of New Delhi Tuberculosis Centre, New delhi and Other, AIR 1986 SC 842 , the Apex Court observed as follows:- "it is common knowledge that even before S. 178 was enacted. Courts were, in their discretion, awarding wages to workmen when they felt such a direction was necessary but that was only a discretionary remedy depending upon Court to Court. Instances are legion where workmen have been dragged by the employers in endless litigation with preliminary objections and other technical pleas to tire them out. A fight between a workman and his employer is often times an unequal fight. The legislature was thus aware that because of the long pendency of disputes in Tribunals and Courts, on account of the dilatory tactics adopted by the employer, workmen had suffered. It is against this background that the introduction of this Section has to be viewed and its effects considered. "the Objects and Reasons for enacting the Section is as follows: "when Labour Courts pass awards of reinstatement, these are often contested by an employer in the supreme Court and High Courts. It is against this background that the introduction of this Section has to be viewed and its effects considered. "the Objects and Reasons for enacting the Section is as follows: "when Labour Courts pass awards of reinstatement, these are often contested by an employer in the supreme Court and High Courts. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore, proposed to provide the payment of wages last drawn by the workman concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or High Courts. "on similar lines, in Suresh Sukhram Patil vs. Mahindra and Mahindra Ltd. and others, 1987 (54) F. L. R. 748, a division Bench of the High Court of Bombay comprising bharucha and Variava JJ. (as their Lordships then were) found it unnecessary to consider the application of the workman under Section 17-B, and directed the management to pay all arrears of salary and other emoluments as also future salary and other emoluments from month to month. As in the present case, the management had filed a writ petition assailing the industrial Tribunal s disapproval in Section 33 (2) (b) proceedings. ( 9 ) IN my considered view, there is no need to travel beyond Section 17-B itself. As has been -repeatedly observed, the Management s order of dismissal effects de facto termination of services and this is transformed into de jure character only once the approval is granted. If approval is declined, the immediate consequence is that even the de facto status is reversed and obliterated. The workman continues in service and it should be open to him to recover his wages and entitlement by pursuing the most convenient and expeditious legal recourse available to him. This was the view of the two separate Division Benches of the high Court of Calcutta in the case of Samser Ali and bata India (supra ). The workman continues in service and it should be open to him to recover his wages and entitlement by pursuing the most convenient and expeditious legal recourse available to him. This was the view of the two separate Division Benches of the high Court of Calcutta in the case of Samser Ali and bata India (supra ). Observations in the last case call for extraction herein, and read as follows :- "in our view, if a liberal interpretation is given to Section 178 for the purpose of giving effect to the beneficial object which it seeks to achieve, there will be no difficulty in extending the benefit of the said section even in such a case where the employer challenges an order passed by the Tribunal disapproving an order of dismissal under Section 33 (2) (b) of the Industrial Disputes act in the High Court and the Supreme court. Although in case of such disapproval by the Tribunal under section 33 (2) (b) of the Industrial disputes Act, Tribunal does not actually direct reinstatement in service, the real effect of such order is, in our view, amounts to reinstatement. "reinstatement means as per words AND PHRASES , Permanent edition Volume 36 A, "to restore to a former state, authority or station". "to return to a farmer status", "to restore to a state from which one has been reserved". As per BLACK s LAW dictionary 6th Edition, reinstatement means "to reinstall, to reestablish, to place again in a former state, condition, or office, to restore to a state or position from which the object or person had been removed". Under such circumstances, legal effect of disapproval under Section 33 (2) (b) of the said Act by the tribunal although may make the order of dismissal void ab-initio, as held by the Supreme Court in the case of p. O. Sharma v. State Bank of India and the workman concerned deems to continue in service, the same is really by a fiction of law. Factually and effectually, however, the workman concerned is restored back to the position which he held before the order of dismissal only after the order of such disapproval is passed by the Tribunal under aforesaid Section 33 (2) (b) of the said Act and consequentially as a matter of right is entitled not only to all arrear wages and other benefits, but also is entitled to his salary month by month. In that view of the matter we are unable to accept the submission of Mr. Ginwala that provision of 17b would not be applicable as there was no award directing reinstatement. The definition of Award and Industrial disputes as it would appear from section 2 (b) and Section 2 (k) of the said Act themselves, are of the widest amplitude. Award has been defined under Section 2 (b) of the Act as an interim or final determination of any industrial Disputes or of any question relating thereto of any Labour Court or Industrial Tribunal or National industrial Tribunal and Industrial disputes has been defined under section 2 (k) of the said Act as any disputes between the employers and employees or between the employees and workman and between the workman and employers which is connected with the employment or non-employment or with the terms of employment or with the conditions of labour of any persons. The decision of the Industrial tribunal under Section 33 (2) (b) of the Industrial DisputesAct disapproving the order of dismissal is certainly a matter relating to employment or non-employment of the workman and is certainly a determination by the Tribunal in respect thereto. Such decision is certainly a determination that the dismissal in question is invalid and therefore cannot be approved. There is no reason therefore, as to why, giving a liberal interpretation to the provision of Section 17b of the said act, such a decision of the Induritrial tribunal under Section 33 (2) (b) of the said Act cannot be termed as an award within the meaning of Section 17b of the said Act. " ( 10 ) IN these circumstances, I am convinced that the applications filed under Section 17~b have consi derable merit and call for being allowed. " ( 10 ) IN these circumstances, I am convinced that the applications filed under Section 17~b have consi derable merit and call for being allowed. The petitioner/management is directed to pay to the applicants within thirty days the full wages last drawn by him, which should not be less than the minimum wages applicable for the relevant period (s ). These wages shall be payable from the date on which the Labour court/tribunal disposed off the Petitioner s application under Section 33 (2) (b ). ( 11 ). AS there was no factual denial by the respondents, and the legal position was arguable and open to more than one opinion, there shall be no order as to costs. --- *** --- .