Decided on April 25,2007

D.T.C. Appellant


HIMA KOHLI, J. - (1.) 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.;

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