Delhi High Court
Delhi Transport Corporation vs Shri Ramesh Chander on 4 April, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : March 15, 2011
Judgment Delivered on: April 4, 2011
+ LPA No. 610 Of 2005
Delhi Transport Corporation ..... Appellant
Through: Mr.Sarfaraj Khan and Mr.S.M.
Vaseem, Advocates.
Versus
Shri Ramesh Chander ..... Respondent
Through: Mr.Mahabir Singh, Sr. Advocate with
Mr. Rakesh Dahiya, Mr. Gayan Deep
and Mr. Ajay Pandey, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3 Whether the judgment should be reported in the Digest? YES
DIPAK MISRA, CJ
In this intra-Court appeal, the warrantableness of the order dated
14.9.2004 passed by the learned Single Judge in CW No.1998/2004 is called
in question.
2. Filtering the unnecessary details, the facts which are essential to be
stated are that the appellant, Delhi Transport Corporation (for short „the
LPA 610/2005 page 1 of 27
DTC‟), filed an application under Section 33(2)(b) of the Industrial
Disputes Act, 1947 (for brevity „the Act‟) before the Industrial Tribunal-II
in O.P. No.389/93 seeking approval of the action of removal of the
respondent - workman from service. The tribunal framed a preliminary
issue on 2.9.1996 to the effect whether a legal and valid enquiry had been
held against the workman and, by order dated 7.8.2002, decided the issue
against the DTC. Thereafter, the tribunal framed three issues and
eventually came to hold that the absence of the respondent - workman did
not amount to misconduct and, therefore, declined to grant approval to the
management DTC under Section 33(2)(b) of the Act vide order dated
26.2.2003.
3. Being dissatisfied with the aforesaid order, the DTC invoked the
jurisdiction of this Court and the learned Single Judge, placing reliance on
the decision rendered in Delhi Transport Corporation v. Sardar Singh,
2004 (6) SCALE 613, came to hold as follows:
"15. In the present case there is no dispute that the
respondent workman did not obtain any proper
sanction for his leave. The mere submission of a leave
application or a medical certificate is of no consequence
unless the leave is duly approved or sanctioned.
LPA 610/2005 page 2 of 27
16. In view of the decision of the Supreme Court
referred to above, since the learned Tribunal has
refused to grant approval only on the ground that the
period of absence was treated as leave without pay
which did not amount to misconduct, the absence being
undisputed, there is no option but to set aside the order
passed and to accord approval to the application filed
by the Petitioner under Section 33(2)(b) of the Act."
4. After so holding, the learned Single Judge posed the question what
relief should be granted to the DTC. To adjudicate the said facet, the
learned Single Judge dwelled upon the issue relating to the status enjoyed
by the respondent - workman during the intervening period. The writ
court referred to the decision in Jaipur Zila Sahakari Bhoomi Vikas Bank
Ltd. v. Ram Gopal Sharma and others, (2002) 2 SCC 244 and opined that
when approval is granted, it relates back to the date of the order of
dismissal or discharge and if approval is not granted, it would be deemed
as if the order of dismissal or discharge had never been passed and,
therefore, the employee is deemed to have continued in service entitling
him to all the benefits available without the need for passing a separate or
specific order for his reinstatement. The learned Single Judge has further
opined that the workman has only an accrued right to get his wages and
other benefits and the right gets crystallized or vested in the workman
LPA 610/2005 page 3 of 27
when the approval application is rejected. After so stating, the learned
Single Judge referred to the decisions in Ram Kishan v. Lt. Governor,
National Capital Territory of Delhi & Anr., 2001 VII AD (Delhi) 949,
Rajender Singh v. Delhi Transport Corporation & Anr., 98 (2002) DLT 706
(DB), Randhir Singh v. Delhi Transport Corporation & Anr., 2002 (62) DRJ
536, Rajinder Singh v. DTC & Ors., 104 (2003) DLT 982 and Roshan Singh
v. Delhi Transport Corporation, 105 (2003) DLT 110 to highlight that the
DTC, despite facing rejection orders under Section 33(2)(b) of the Act quite
often, did not reinstate the workman as a consequence of which the
employees were compelled to file writ petitions for reinstatement which
was unnecessary.
5. After taking note of the said decisions, the learned Single Judge
adverted to the facts of the case at hand. He has noted that the order of
dismissal was passed on 28.5.1993. In terms of the decision rendered by
the Apex Court in Ram Gopal Sharma and others (supra), the order of
dismissal was incomplete or inchoate until the tribunal rendered a decision
on the approval application. On 26.2.2003, the tribunal declined to grant
approval to the action of the DTC and, therefore, the workman is deemed
to have been continuing in service as on 26.2.2003 as if the order of
LPA 610/2005 page 4 of 27
dismissal was never passed. The learned Single Judge further held that the
respondent - workman continued in service with such a status at least
until 13.2.2004, when the order dated 26.2.2003 was stayed by this Court.
Thereafter, the learned Single Judge held thus:
"27. Since I have now held that approval under
Section 33(2)(b) of the Act was wrongly declined, the
Respondent workman would stand dismissed with
effect from 28th May, 1993 (the date of the dismissal
order). This would be in accordance with the law laid
down by the Supreme Court in Ram Gopal Sharma.
However, if the law is applied literally and strictly, it
will mean that the Respondent workman was wrongly
paid his wages for this period (assuming he was so
paid) and he should, therefore, refund the amounts
received by him from the date of his dismissal. I think
this is too harsh and the Supreme Court could not have
intended such a result.
28. It has been held on several occasions that the Act
is a beneficial legislation and its provisions have to be
construed liberally because it is a legislation enacted for
the welfare of workers [See for example The Workmen
of M/s Firestone Tyre & Rubber Co. of India (P) Ltd. vs.
The Management, (1973) 1 SCC 813]. If one proceeds on
this basis, it cannot be said by any stretch of
imagination that the Act permits an employer to recover
wages paid to a workman up to the date when approval
under Section 33(2)(b) of the Act is declined or till the
date when the order declining approval is stayed by the
High Court. Therefore, one has to take a pragmatic and
reasonable view of the matter, and after doing so, I am
of the opinion that wages and other benefits paid to a
workman, till the date when approval is declined and
LPA 610/2005 page 5 of 27
even thereafter until the date when the order declining
approval is stayed by the High Court, are required to be
paid to him, and if so paid, are not required to be
refunded by him."
6. On the basis of the aforesaid, the learned Single Judge proceeded to
issue the directions as follows:
"1. The impugned order dated 26th February, 2003 is
set aside. However, the Petitioner will pay to the
Respondent workman, all wages and other benefits due
to him until 13th February, 2004, that is, the date on
which this Court stayed the impugned order. The
payments should be made to the Respondent workman
within six weeks from today.
2. When any industrial adjudicator declines to grant
approval to an order of dismissal or discharge passed
under Section 33(2)(b) of the Act, it is obliged to treat
the workman as being on duty as per the law laid down
by the Constitution Bench of the Supreme Court.
Therefore, it must direct the employer to pay to the
workman all wages and other benefits due to him until
the date of the refusal order and it must also direct
payment to be made within a specified and reasonable
period of time.
3. When a writ petition is filed challenging an order
passed by an industrial adjudicator declining approval
under Section 33(2)(b) of the Act, the writ Court also is
obliged to treat the Respondent workman as being on
duty as per the law laid down by the Constitution
Bench of the Supreme Court. Consequently, the
Respondent workman is entitled to wages and all other
benefits as a result of the refusal by the industrial
LPA 610/2005 page 6 of 27
adjudicator to grant approval under Section 33(2)(b) of
the Act until the order of refusal is stayed by the writ
Court. Therefore, the writ Court should insist, as a rule,
that the employer should pay to the workman his dues
until such time as the impugned order continues to
operate.
4. When a writ Court sets aside the order passed by
an industrial adjudicator declining approval under
Section 33(2)(b) of the Act, it will take effect from the
date the employer passed the initial order of dismissal
or discharge. However, keeping in view that the Act is
a beneficial legislation, it must not direct the
Respondent workman to refund the amount received by
him towards wages and other benefits."
7. Assailing the legal sustainability of the order, it is submitted by
Mr.Khan that once the order of non-approval is quashed and a conclusion
is arrived at by the learned Single Judge that the order of dismissal would
be valid with effect from 28th May, 1993, there was no justification to issue
a direction for grant of all wages and benefits from 26th February, 2003 till
13th February, 2004, the date the writ Court stayed the impugned order, in
the absence of a statutory command or stipulation in the Act. It is his
further submission that the order of approval has to date back to the date
of dismissal and the learned Single Judge having so held could not have
invoked the concept of beneficent legislation. Mr. Khan has also urged
LPA 610/2005 page 7 of 27
that the decisions relied upon by the learned Single Judge with regard to
the action and attitude of the DTC would not empower or clothe the writ
court with jurisdiction to issue a direction for payment for the interregnum
period which has no sanction of law.
8. Mr. Mahabir Singh, learned senior counsel, per contra, canvassed
that the order passed by the learned Single Judge is absolutely impeccable
because the workman continues to be in service till the order of dismissal
is approved and as in the present case, since the order of non-approval
was challenged almost after a year, the direction for payment of wage is
justified. It is urged by him that when a discretionary relief is granted by
the writ court, the same should not be dislodged in an intra-court appeal.
9. At the very outset, we may fruitfully refer to the decision in Ram
Gopal Sharma and others (supra), where the Constitution Bench was
addressing the following proposition:
"If the approval is not granted under Section 33(2)(b) of
the Industrial Disputes Act, 1947, whether the order of
dismissal becomes ineffective from the date it was
passed or from the date of non-approval of the order of
dismissal and whether failure to make application
under Section 33(2)(b) would not render the order of
dismissal inoperative?"
LPA 610/2005 page 8 of 27
10. Thereafter, their Lordships referred to the decisions in P.H.Kalyani
v. Air France, Calcutta, AIR 1963 SC 1756, Strawboard Mfg. Co. v.
Govind, AIR 1962 SC 1500, Tata Iron & Steel Co. Ltd. v. S.N. Modak, AIR
1966 SC 380 and held thus:
"13. The proviso to Section 33(2)(b), as can be seen
from its very unambiguous and clear language, is
mandatory. This apart, from the object of Section 33 and
in the context of the proviso to Section 33(2)(b), it is
obvious that the conditions contained in the said
proviso are to be essentially complied with. Further,
any employer who contravenes the provisions of
Section 33 invites a punishment under Section 31(1)
with imprisonment for a term which may extend to six
months or with fine which may extend to Rs. 1000/- or
with both. This penal provision is again a pointer of the
mandatory nature of the proviso to comply with the
conditions stated therein. To put it in another way, the
said conditions being mandatory, are to be satisfied if
an order of discharge or dismissal passed under Section
33(2)(b) is to be operative. If an employer desires to take
benefit of the said provision for passing an order of
discharge or dismissal of an employee, he has also to
take the burden of discharging the statutory obligation
placed on him in the said proviso. Taking a contrary
view that an order of discharge or dismissal passed by
an employer in contravention of the mandatory
conditions contained in the proviso does not render
such an order inoperative or void, defeats the very
purpose of the proviso and it becomes meaningless. It is
well-settled rule of interpretation that no part of statute
shall be construed as unnecessary or superfluous. The
LPA 610/2005 page 9 of 27
proviso cannot be diluted or disobeyed by an employer.
He cannot disobey the mandatory provision and then
say that the order of discharge or dismissal made in
contravention of Section 33(2)(b) is not void or
inoperative. He cannot be permitted to take advantage
of his own wrong. The interpretation of statute must be
such that it should advance the legislative intent and
serve the purpose for which it is made rather than to
frustrate it. The proviso to Section 33(2)(b) affords
protection to a workman to safeguard his interest and it
is a shield against victimization and unfair labour
practice by the employer during the pendency of
industrial dispute when the relationship between them
are already strained. An employer cannot be permitted
to use the provision of Section 33(2)(b) to ease out a
workman without complying with the conditions
contained in the said proviso for any alleged
misconduct said to be unconnected with the already
pending industrial dispute. The protection afforded to a
workman under the said provision cannot be taken
away. If it is to be held that an order of discharge or
dismissal passed by the employer without complying
with the requirements of the said proviso is not void or
inoperative, the employer may with impunity discharge
or dismiss a workman.
14. Where an application is made under Section
33(2)(b) proviso, the authority before which the
proceeding is pending for approval of the action taken
by the employer has to examine whether the order of
dismissal or discharge is bona fide; whether it was by
way of victimization or unfair labour practice; whether
the conditions contained in the proviso were complied
with or not etc. If the authority refuses to grant
approval obviously it follows that the employee
continues to be in service as if order of discharge or
dismissal never had been passed. The order of dismissal
or discharge passed invoking Section 33(2)(b)
LPA 610/2005 page 10 of 27
dismissing or discharging an employee brings an end of
relationship of the employer and employee from the
date of his dismissal or discharge but that order remains
incomplete and remains inchoate as it is subject to
approval of the authority under the said provision. In
other words, this relationship comes to an end de jure
only when the authority grants approval. If approval is
not given, nothing more is required to be done by the
employee, as it will have to be deemed that the order of
discharge or dismissal had never been passed.
Consequence of it is that the employee is deemed to
have continued in service entitling him to all the
benefits available. This being the position there is no
need of a separate or specific order for his
reinstatement. But on the other hand, if approval is
given by the authority and if the employee is aggrieved
by such an approval, he is entitled to make a complaint
under Section 33-A challenging the order granting
approval on any of the grounds available to him.
Section 33-A is available only to an employee and is
intended to save his time and trouble inasmuch as he
can straightaway make a complaint before the very
authority where the industrial dispute is already
pending between the parties challenging the order of
approval instead of making efforts to raise an industrial
dispute, get a reference and thereafter adjudication. In
this view, it is not correct to say that even though where
the order of discharge or dismissal is inoperative for
contravention of the mandatory conditions contained in
the proviso or where the approval is refused, a
workman should still make a complaint under Section
33-A and that the order of dismissal or discharge
becomes invalid or void only when it is set aside under
Section 33-A and that till such time he should suffer
misery of unemployment in spite of statutory protection
given to him by the proviso to Section 33(2)(b). It is not
correct to say that where the order of discharge or
LPA 610/2005 page 11 of 27
dismissal becomes inoperative because of contravention
of proviso to Section 33(2)(b), Section 33-A would be
meaningless and futile. The said Section has a definite
purpose to serve, as already stated above, enabling an
employee to make a complaint, if aggrieved by the
order of the approval granted."
Thereafter, their Lordships proceeded to state as follows:
"18. In view of what is stated above, we respectfully
agree with and endorse the view taken in the case of
Strawboard (supra) and Tata Iron & Steel Co. (supra) and
further state that the view expressed in Punjab Beverages
(P) Ltd. v. Suresh Chand, (1978) 2 SCC 144 on the
question is not the correct view. The question raised in
the beginning of this judgment is answered
accordingly."
11. It is worth noting that in Tata Iron & Steel Co. Ltd. (supra), their
Lordships have opined thus:
"It is now well-settled that the requirements of the
proviso have to be satisfied by the employer on the
basis that they form part of the same transaction; and
stated generally, the employer must either pay or offer
the salary for one month to the employee before passing
an order of his discharge or dismissal, and must apply
to the specified authority for approval of his action at
the same time, or within such reasonably short time
thereafter as to form part of the same transaction. It is
also settled that if approval is granted, it takes effect
from the date of the order passed by the employer for
LPA 610/2005 page 12 of 27
which approval was sought. If approval is not granted,
the order of dismissal or discharge passed by the
employer is wholly invalid or inoperative, and the
employee can legitimately claim to continue to be in the
employment of the employer notwithstanding the order
passed by him dismissing or discharging him. In other
words, approval by the prescribed authority makes the
order of discharge or dismissal effective; in the absence
of approval, such an order is invalid and inoperative in
law.
X X X X
...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.
[Emphasis supplied]
12. In D.C. Roy v. Presiding Officer, (1976) 3 SCC 693, their Lordships
referred to the decision of the Constitution Bench in P.H.Kalyani (supra)
and relied on the following observations:
"The present is a case where the employer has held an
inquiry though it was defective and has passed an order
of dismissal and seeks approval of that order. If the
inquiry is not defective, the labour court has only to see
whether there was a prima facie case for dismissal, and
LPA 610/2005 page 13 of 27
whether the employer had come to the bona fide
conclusion that the employee was guilty of misconduct.
Thereafter on coming to the conclusion that the
employer had bona fide come to the conclusion that the
employee was guilty i.e. there was no unfair labour
practice and no victimisation, the labour court would
grant the approval which would relate back to the date
from which the employer had ordered the dismissal. If
the inquiry is defective for any reason, the labour court
would also have to consider for itself on the evidence
adduced before it whether the dismissal was justified.
However, on coming to the conclusion on its own
appraisal of evidence adduced before it that the
dismissal was justified its approval of the order of
dismissal made by the employer in a defective inquiry
would still relate back to the date when the order was
made."
After placing reliance on the said observations, their Lordships held
thus:
"These observations directly cover the case before us
because though the labour court, in the instant case,
found that the inquiry was defective as it infringed the
principles of natural justice, it came to the conclusion
after considering the evidence adduced before it, that
the dismissal was justified. The award of the labour
court must therefore relate back to the date when the
order of dismissal was passed on the termination of the
domestic inquiry."
LPA 610/2005 page 14 of 27
13. At this juncture, it is useful to refer to certain authorities pertaining
to the applicability of the doctrine of relation back. In Shri Parmeshwari
Prasad Gupta v. Union of India, (1973) 2 SCC 543, their Lordships were
dealing with an issue in which the Board of Directors of a company
affirmed the earlier resolution in a subsequent meeting which was
properly convened. It is worth noting that the earlier meeting was
defective and, therefore, the resolution terminating the services of the
General Manager was treated to be invalid. While dealing with the effect
of the subsequent meeting, their Lordships have held thus:
"Even if it be assumed that the telegram and the letter
terminating the services of the appellant by the
Chairman was in pursuance of the invalid resolution of
the Board of Directors passed on 16.12.1953 to terminate
his services, it would not follow that the action of the
Chairman could not be ratified in a regularly convened
meeting of the Board of Directors. The point is that even
assuming that the Chairman was not legally authorized
to terminate the services of the appellant, he was acting
on behalf of the Company in doing so, because, he
purported to act in pursuance of the invalid resolution.
Therefore, it was open to a regularly constituted
meeting of the Board of Directors to ratify that action
which, though unauthorized, was done on behalf of the
Company. Ratification would always relate back to the
date of the act ratified and so it must be held that the
services of the appellant were validly terminated on
17.12.1953."
LPA 610/2005 page 15 of 27
14. In High Court of Judicature for Rajasthan v. P.P. Singh, (2003) 4
SCC 239, after referring to the decision in Shri Parmeshwari Prasad Gupta
(supra), it has been opined that even in a case where an initial action is
illegal, the same can be ratified by a body competent therefor.
15. In Maharashtra State Mining Corpn. v. Sunil, (2006) 5 SCC 96, their
Lordships have expressed thus:
"7. The High Court was right when it held that an act
by a legally incompetent authority is invalid. But it was
entirely wrong in holding that such an invalid act
cannot be subsequently "rectified" by ratification of the
competent authority. Ratification by definition means
the making valid of an act already done. The principle is
derived from the Latin maxim ratihabitio mandato
aequiparatur, namely "a subsequent ratification of an act
is equivalent to a prior authority to perform such act".
Therefore ratification assumes an invalid act which is
retrospectively validated."
16. In Delhi Jal Board v. Mahinder Singh, (2000) 7 SCC 210, while
dealing with the doctrine of relation back in the backdrop of consideration
by a Departmental Promotion Committee, the Apex Court has opined
thus:
LPA 610/2005 page 16 of 27
"5. The right to be considered by the Departmental
Promotion Committee is a fundamental right
guaranteed under Article 16 of the Constitution of
India, provided a person is eligible and is in the zone of
consideration. The sealed cover procedure permits the
question of his promotion to be kept in abeyance till the
result of any pending disciplinary inquiry. But the
findings of the disciplinary inquiry exonerating the
officer would have to be given effect to as they
obviously relate back to the date on which the charges
are framed. If the disciplinary inquiry ended in his
favour, it is as if the officer had not been subjected to
any disciplinary inquiry. The sealed cover procedure
was envisaged under the rules to give benefit of any
assessment made by the Departmental Promotion
Committee in favour of such an officer, if he had been
found fit for promotion and if he was later exonerated
in the disciplinary inquiry which was pending at the
time when the DPC met. The mere fact that by the time
the disciplinary proceedings in the first inquiry ended
in his favour and by the time the sealed cover was
opened to give effect to it, another departmental
enquiry was started by the Department, would not, in
our view, come in the way of giving him the benefit of
the assessment by the first Departmental Promotion
Committee in his favour in the anterior selection. There
is, therefore, no question of referring the matter to a
larger Bench."
17. In Graphite India Ltd. and another v. Durgapur Projects Ltd. and
others, (1999) 7 SCC 645, a two-Judge Bench of the Apex Court held that
the controversy related to the grant of approval to effect the increase in
tariff. It is worth noting that the approval was not there initially. In that
LPA 610/2005 page 17 of 27
context, the Lordships opined that when the approval was granted by the
State Government by its letter dated 27.4.1992, the approval related back
and the revision would be effective from 8.4.1991. The contention that the
letter dated 27.4.1992 was not an approval of the increase in tariff effective
from 8.4.1991 was not accepted.
18. On a perusal of the aforesaid enunciation of law, we have no
hesitation in mind that the doctrine of relation back would get squarely
attracted. In fact, in Ram Gopal Sharma and others (supra), their
Lordships approved what has been stated in Tata Iron & Steel Co. Ltd.
(supra) wherein it has been laid down that if approval is granted, it takes
effect from the date of the order passed by the employer for which the
approval was sought. The writ court has clearly and correctly held that
approval under Section 33(2)(b) was wrongly declined and, hence, the
respondent - workman would stand dismissed w.e.f. 28.5.1993. The said
view has also been expressed in the case of Ram Kishan (supra) wherein
this Court has held as follows:
"(g) An order of discharge or dismissal passed under
Section 33(2)(b) is incomplete and inchoate until
approval is granted by the Tribunal in terms of Section
33(2)(b). The relationship of employer and employee is
LPA 610/2005 page 18 of 27
not effectively terminated by passing the order of
discharge or dismissal until approval thereto is
accorded by the Tribunal in terms of Section 33(2)(b). By
passing the order of discharge or dismissal, de facto
relationship of employer and employee is ended but not
de jure.
(h) If approval is granted by the Tribunal it takes
effect from the date of the order passed by the employer
for which approval was sought."
19. The learned Single Judge, after expressing the opinion as aforesaid,
has held that when a writ petition is filed challenging an order passed by
an industrial adjudicator declining approval under Section 33(2)(b) of the
Act, the writ Court also is obliged to treat the respondent-workman as
being on duty as per the law laid down by the Constitution Bench of the
Supreme Court. Consequently, the respondent-workman would be
entitled to wages and all other benefits as a result of the refusal by the
industrial adjudicator to grant approval under Section 33(2)(b) of the Act
until the order of refusal is stayed by the writ Court and, therefore, the
writ Court should insist, as a rule, that the employer should pay to the
workman his dues until such time as the impugned order continues to
operate. It was further held that when a writ court sets aside the order
passed by an industrial adjudicator declining approval under Section
LPA 610/2005 page 19 of 27
33(2)(b) of the Act, it will take effect from the date the employer passed the
initial order of dismissal or discharge. However, keeping in view that the
Act is a beneficial legislation, it must not direct the respondent workman
to refund the amount received by him towards wages and other benefits.
20. To arrive at the said conclusion, he has referred to the attitude of the
DTC in forcing employees to file writ petitions under Article 226 of the
Constitution, as the DTC did not reinstate the employees despite non-grant
of approval. Needless to emphasize, a writ petition can be filed for getting
the benefit as has been held in T.N. State Transport Corporation v.
Neethivilangan, Kumbakonam, (2001) 9 SCC 99. In the said case, in
paragraphs 16 and 17, the Apex Court has opined thus:
"16. From the conspectus of the views taken in the
decisions referred to above the position is manifest that
while the employer has the discretion to initiate a
departmental enquiry and pass an order of dismissal or
discharge against the workman the order remains in an
inchoate state till the employer obtains order of
approval from the Tribunal. By passing the order of
discharge or dismissal de facto relationship of employer
and employee may be ended but not the de jure
relationship for that could happen only when the
Tribunal accords its approval. The relationship of
employer and employee is not legally terminated till
approval of discharge or dismissal is given by the
Tribunal. In a case where the Tribunal refuses to accord
LPA 610/2005 page 20 of 27
approval to the action taken by the employer and rejects
the petition filed under section 33(2)(b) of the Act on
merits the employer is bound to treat the employee as
continuing in service and give him all the consequential
benefits. If the employer refuses to grant the benefits to
the employee the latter is entitled to have his right
enforced by filing a petition under Article 226 of the
Constitution. There is no rational basis for holding that
even after the order of dismissal or discharge has been
rendered invalid on the Tribunal's rejection of the
prayer for approval the workman should suffer the
consequences of such invalid order of dismissal or
discharge till the matter is decided by the Tribunal
again in an industrial dispute. Accepting this contention
would render the bar contained in Section 33(1)
irrelevant. In the present case as noted earlier the
Tribunal on consideration of the matter held that the
employer had failed to establish a prima facie case for
dismissal/discharge of the workman, and therefore,
dismissed the application filed by the employer on
merits. The inevitable consequence of this would be that
the employer was duty-bound to treat the employee as
continuing in service and pay him his wages for the
period, even though he may be subsequently place
under suspension and an enquiry initiated against him.
17. In the facts and circumstances of the case it is our
view that the High Court committed no illegality in
issuing a direction to the appellant for reinstating the
respondent and paying him the back wages."
21. The core issue that emerges for consideration is whether the learned
Single Judge is justified in issuing the direction for grant of wages from the
date of the order, i.e., 26.2.2003 to 13.2.2004, i.e., till the order of stay was
LPA 610/2005 page 21 of 27
passed by this Court. He has so directed on the basis that the employer
cannot be entitled to recover the wages regard being had to the beneficial
nature of the legislation. He has also held that the workman is entitled to
wages and all other benefits as a result of the refusal by the industrial
adjudicator to grant approval under Section 33(2)(b) of the Act until the
order of refusal is stayed by the writ court and, therefore, the writ Court
should insist, as a rule, that the employer should pay to the workman his
dues until such time as the impugned order continues to operate. On a
careful scrutiny of the order passed by the learned Single Judge, we are of
the considered opinion that the directions given or views expressed are, in
fact, not supported by any statutory mandate. How a writ court would
pass an interim order or what conditions can be stipulated at that time
cannot be laid down in a strait jacket formula unless there is a statutory
command. The learned Single judge, as we perceive, has held that unless
there is an order of stay, the workman is entitled to get the wages but there
can be no recovery. If a workman has been paid by the employer, possibly
there may not be a direction for refund or recovery regard being had to
several aspects including the beneficent nature of the legislation. But to
hold and opine that the workman will be entitled to the wages as a matter
LPA 610/2005 page 22 of 27
of legal right despite quashing the order declining to approve the order of
dismissal by the High Court is not acceptable. It is a command to do
something which the law does not warrant because the order of non-
approval becomes extinct when the writ court finds that the same has been
unjustifiably denied. The doctrine of relation back gets squarely attracted.
It operates in full force and applies to the fullest extent.
22. It is seemly to state here that the non-realization of the amount paid
to the workman is in the sphere of equity but the issue of a mandatory
direction or a command is realization or fructification of a right. It is well
settled in law that fair play and equity must yield to the provisions of the
statute. In this context we may profitably reproduce a passage from
Madamanchi Ramappa and another v. Muthaluru Bojappa, AIR 1963 SC
1633:
"12. ....It may be that in some cases, the High Court
dealing with the second appeal is inclined to take the
view that what it regards to be justice or equity of the
case has not been served by the findings of fact
recorded by Courts of fact; but on such occasions it is
necessary to remember that what is administered in
Courts is justice according to law and considerations of
fair play and equity however important they may be,
must yield to clear and express provisions of the
law...."
LPA 610/2005 page 23 of 27
23. In this context, we may fruitfully refer to a three-Judge Bench
decision in Roshanlal Kuthalia & Ors. v. R.B. Mohan Singh Oberoi, (1975)
4 SCC 628 wherein it has been held thus:
"29. .....
Certainly when law speaks in positive terms, equity
may not be invoked against it; but while applying the
law the Court can and must ameliorate unwitting
rigours inflicted by legalisms, where there is room for
play, by the use of equity....."
24. In Council for Indian School Certificate Examination v. Isha Mittal
& Anr., (2000) 7 SCC 521, the Apex Court has stated thus:
"4. It is the obligation of the High Court to decide the
matters before it in accordance with law. If the law was,
as the High Court observes in the passage quoted
above, in favour of the appellant before it, it was
obliged to make an order in favour of the appellant.
Considerations of equity cannot prevail and do not
permit a High Court to pass an order contrary to the
law."
25. In P.M. Latha & Anr. v. State of Kerala & Ors., (2003) 3 SCC 541,
their Lordships have held thus:
LPA 610/2005 page 24 of 27
"13. Equity and law are twin brothers and law should
be applied and interpreted equitably but equity cannot
override written or settled law......"
26. In Raghunath Rai Bareja & Anr. v. Punjab National Bank & Ors.,
(2007) 2 SCC 230, their Lordships have expressed thus:
29. ....it is well settled that when there is a conflict
between law and equity, it is the law which has to
prevail, in accordance with the Latin maxim "dura lex
sed lex", which means "the law is hard, but it is the
law". Equity can only supplement the law, but it cannot
supplant or override it.
27. In B. Premanand & Ors. v. Mohan Koikal & Ors., 2011 (3) Scale 598,
it has been ruled thus:
"13. ....No doubt, equity may be in favour of the
respondents because they were selected earlier, but as
observed earlier, if there is a conflict between equity
and the law, it is the law which must prevail..."
28. In view of the aforesaid enunciation of law, the equity cannot weigh
in favour of a workman when the order refusing to grant approval passed
by the industrial adjudicator is set aside in exercise of inherent jurisdiction
by the writ court. While exercising the equitable jurisdiction, that amount
LPA 610/2005 page 25 of 27
paid to the workman may not be recovered or he should not be compelled
to refund the same, but issuing of a direction to pay him the wages inspite
of the order of disapproval being axed by the High Court, which is a
command and the said direction is in the realm of law, as a result of which
the equitable consideration would come in conflict with law. Thus, such a
direction, not being sanctioned by the authority of law, cannot be issued.
29. The direction issued by the learned Single Judge can be viewed from
another angle. On a proper appreciation of the directions issued by the
learned Single Judge in his conclusion in paragraph 3, the same, in our
opinion, is in the nature of an introduction of a legislative mandate. We
are disposed to think so as there is no provision in the Act to cover such a
situation. In this context, we may refer with profit to the decision in
Chandigarh Administration and others v. Manpreet Singh and others,
(1992) 1 SCC 380 wherein the Apex Court has held that the High Court can
strike down an offending rule on stated ground of invalidity and direct the
authority to re-frame it and act accordingly but cannot itself re-frame it
and issue directions.
LPA 610/2005 page 26 of 27
30. In Municipal Committee, Patiala v. Model Town Residents Assn.
and others, (2007) 8 SCC 669, it has been held thus:
"27. It is so well settled and needs no restatement at
our hands that the legislature is supreme in its own
sphere under the Constitution subject to the limitations
provided for in the Constitution itself. It is for the
legislature to decide as to when and in what respect and
of what subject-matter the laws are to be made. It is for
the legislature to decide as to the nature of operation of
the statutes."
31. In view of our aforesaid analysis, we are unable to concur with the
view expressed by the learned Single Judge that there should be payment
of amount from 26th February, 2003 to 13th February, 2004 and further, with
due respect, we are also not in agreement with the conclusion No.3 arrived
at by the learned Single Judge and, accordingly, both are set aside.
32. Consequently, keeping in view the restricted and limited prayer
made by the appellant - DTC, the appeal is allowed. There shall be no
order as to costs.
CHIEF JUSTICE
APRIL 4, 2011 SANJIV KHANNA, J.
dk LPA 610/2005 page 27 of 27