WP(C) No. 1120/2002 Page 1 of 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No. 1120/2002 % 23rd December, 2010 DELHI TRANSPORT CORPORATION ...... Petitioner Through: Mr. Anand Nandan, Advocate. VERSUS RAMBIR SINGH & ANR. .... Respondents Through: Ms. Kiran Bajaj, Advocate. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? VALMIKI J. MEHTA, J (ORAL) 1. The challenge by means of this writ petition under Articles 226 and 227 of the Constitution of India is to the impugned Award dated 1.3.2001 passed by the Industrial Tribunal. The impugned Award has been passed on an application filed by the petitioner under Section 33(2)(b) of the Industrial Disputes Act, 1947 whereby approval of the Tribunal was sought for removal of the respondent from service. 2. The scope of the proceedings under Section 33(2)(b) of the Industrial Disputes Act has been recently pronounced upon by a learned WP(C) No. 1120/2002 Page 2 of 6 single Judge of this Court (Rajiv Sahai Endlaw, J.) in the case of Delhi Transport Corporation Vs. Shyam Lal decided on 1.7.2010, W.P.(C) No.3633/2004 reported as Manu/DE/1634/2010. The following paragraphs of the judgment are relevant and the same read as under: “11. The scope of jurisdiction of the Industrial Adjudicator under Section 33(2)(b), is only to oversee the dismissal to ensure that no unfair labour practice or victimization has been practiced. If the procedure of fair hearing has been observed and a prima- facie case for dismissal is made out; approval has to be granted. The jurisdiction of the Industrial Adjudicator under Section 33(2)(b) cannot be wider than this. Reference in this regard may be made to Lalla Ram v. D.C.M. Chemical Works Ltd. MANU/SC/0268/1978 : AIR 1978 SC 1004 and Cholan Roadways Limited v. G. Thirugnanasambandam MANU/SC/1080/2004 : AIR 2005 SC 570. The proceeding under Section 33(2)(b) is not a substitute for an industrial dispute referred for adjudication under Section 10. It is for this reason only that the decision on the application under Section 33(2)(b) does not close the right of the respondent workman to raise an industrial dispute under Section 10 of the ID Act. 12. However, the distinction between adjudication of an industrial dispute referred under Section 10 and an approval application under Section 33(2)(b) in practice is found to have been blurred. Applications under Section 33(2)(b) are being treated and tried in the same manner and following the same procedure as an industrial dispute. This has led to a situation, where decision of applications under Section 33(2)(b) is held up for years and/or takes the same time as decision of an industrial dispute under Section 10. Often, it is also found to result in parallel proceedings or duplicate proceedings in both of which witnesses are examined and on same facts and evidence, inconsistent findings returned in two proceedings, in ignorance of other proceeding. 13. If the object of Section 33(2)(b) is only to prevent victimization of an employee in dispute with the management/employer, the scope of inquiry by the Industrial Adjudicator while dealing with and deciding such application cannot possibly be the same as while dealing with and deciding WP(C) No. 1120/2002 Page 3 of 6 an industrial dispute. If an application under Section 33(2)(b) is to be dealt with and scope of inquiry therein so limited, the disposal thereof should not take long. The findings returned by the Industrial Adjudicator on an application under Section 33(2)(b) are "prima-facie" and not "final" and not binding in a subsequent industrial dispute. The findings can be "prima-facie" only if returned on the basis of "summary" examination and not if returned on the basis of "detailed examination" as in adjudication of industrial disputes. 14. However, it is found that the Industrial Adjudicators, after completion of pleadings in an application under Section 33(2)(b), frame a preliminary issue qua validity of domestic inquiry, allow examination of witnesses on such preliminary issues and if decide preliminary issues against the management/employer and if the management/employer has exercised the option to prove misconduct before the Industrial Adjudicator, frame issues thereon, again allow evidence and then adjudicate. Very often, the reply to the application under Section 33(2)(b) not even found to contain defence of victimization or found to contain vague and general pleas qua victimization; the pleas as relevant in an industrial dispute are raised and adjudicated. In a large number of cases, the complete inquiry proceedings/reports are not even found on the file of Industrial Adjudicator. 15. In my view, the Industrial Adjudicators should insist on the complete record/report of domestic inquiry and the disciplinary authority to be produced along with an application under Section 33(2)(b). Thereafter, the pleadings should be perused minutely to see whether any case of victimization is made out. If the workman has not pleaded a case of victimization owing to pendency of an earlier dispute or has not made out a case of action of which approval is sought having been taken against him to settle scores with him in the earlier dispute or to derive unfair advantage in the earlier dispute, or if the pleadings in this respect are vague and without particulars, no further inquiry by the Industrial Adjudicators is needed and the application under Section 33(2)(b) should be allowed immediately. Even if pleas are taken by the workman of the domestic inquiry having been conducted in violation of the Standing Orders/Rules or the principles of natural justice, but the same is not attributable to victimization as aforesaid, such pleas ought not to be adjudicated in Section 33(2)(b) proceedings but should be left to be adjudicated in the industrial dispute if raised under Section 10 of WP(C) No. 1120/2002 Page 4 of 6 the Act. The earlier industrial dispute owing whereto Section 33(2)(b) application is necessitated, in a large number of cases is not of the individual workman against whom application under Section 33(2)(b) is filed but has been raised by all workmen of the establishment or their union and with respect to their general service conditions. In such cases, the management/employer generally cannot be said to have taken the action of which approval under Section 33(2)(b) is sought, by way of victimization, unless it is shown that such workman was responsible for initiating/instigating or pursuing the earlier dispute. 16. If the workman in his reply to Section 33(2)(b) application or otherwise does make out a case of victimization, the industrial adjudicator should then proceed to see by examination of domestic inquiry proceedings whether the same is borne out thereform. However, such examination should again be limited to whether, to ensure dismissal of workman, he has been as a matter of design, deprived of or prevented from proper opportunity or from proving his case. Such examination has to be narrower than examination of validity of domestic inquiry in an industrial dispute under Section 10. For instance, while an inadvertent breach of prescribed procedure of inquiry may entitle the industrial adjudicator in a Section 10 proceeding to hold the domestic inquiry to be vitiated but unless such breach is found to be intended to prevent the workman from placing his version before the Inquiry Officer, so as to ensure finding against him, the same may not constitute a ground in a Section 33(2)(b) proceeding to hold the domestic inquiry to be vitiated.” (Emphasis added) 3. A reading of the relevant paragraphs of the decision in the aforesaid case of Delhi Transport Corporation (supra) makes is clear that the proceedings under Section 33(2)(b) are only summary in nature and are no substitute for adjudication of an industrial dispute which the workman is otherwise entitled to raise for challenging his dismissal. In this case, I am informed by the counsel for the petitioner that the workman has indeed WP(C) No. 1120/2002 Page 5 of 6 raised such an industrial dispute and which case is fixed for final arguments on 18.2.2011. In accordance with the judgment in Delhi Transport Corporation case, the merits of the matter have not to be seen and which is examined by the Labour Court which is seized of the industrial dispute of challenging the dismissal raised by the workman and the only issue before the Court which has to be decided in an application by the management under Section 33(2)(b) of the Industrial Disputes Act is as to whether the dismissal is on account of victimization of the workman. The Court has emphasized that it is necessary for the workman to categorically plead and prove victimization inasmuch as the merits of the termination, the validity of the enquiry proceedings and other related aspects would be in issue in the industrial dispute raised by the workman and not in the proceedings under Section 33(2)(b). 4. In the present case, the counsel for the respondent was called upon to show that whether in the pleadings, or in the evidence of the Court below a specific and categorical case of victimization of the workman has been pleaded and proved. I have alongwith counsel for the respondent gone through the pleadings and the affidavit by way of evidence. There is not even a whisper in the entire pleadings and in the affidavit that the termination which has been done of the workman is in order to victimize the workman. The counsel for the respondent sought to argue that the enquiry proceedings are vitiated and the principles of natural justice have not been WP(C) No. 1120/2002 Page 6 of 6 followed. In my opinion, in accordance with the decision in the case of Delhi Transport Corporation (supra) referred to above, all these are issues which would be issues in the industrial dispute which have been raised by the workman with respect to his termination and which is pending decision. 5. The facts of the present case are therefore squarely covered by the ratio in the case of Delhi Transport Corporation (supra). In view of the above, the present petition is allowed and the impugned Award dated 1.3.2001 is quashed and set aside. The petition is therefore allowed, leaving the parties to bear their own costs. Nothing stated in this order will in any manner affect either of the parties in the adjudication pending with respect to the industrial disputes raised by the workman with respect to his dismissal from service. C.M.No.1840/02 (stay) in W.P.(C) No.1120/02 Interim orders stand vacated. Application stands disposed of. C.M. No.4939/03 (under Section 17B) in W.P.(C) 1120/02 No orders are required to be passed in the application which is disposed of as such. DECEMBER 23, 2010 VALMIKI J. MEHTA, J Ne