Dismissed

Romi Sharma & Anr. v. Secretary Labour & Ors.

Delhi HC5 Nov 2015LPA/486/2013

Case brief

AI extract

What is this about?

The Division Bench dismissed an appeal against the single Judge's order refusing sanction to prosecute Management for violating Section 33. The Court held the refusal was not arbitrary given prior findings by the Tribunal and mutual litigation status.

What did the court decide?

Finding of the learned Single Judge and order refusing sanction to prosecute were upheld; appeal dismissed.

Romi Sharma & Anr. Vs Secretary Labour & Ors. — Service and Employment | Delhi HC (2015)

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Signature Not Verified Digitally Signed By:AM UL YA

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Briefly the facts are that the respondent-Managementhad sought to take disciplinary action by dismissingthe workman. At that point of time an unrelated industrial dispute was pending. The Management approached the Industrial Tribunal—^which was seized of the dispute, seeking permission under Section 33(2)(b). The application,however,was dismissedasnot rnaintainable.Atthattime.

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an industrial dispute^witK^whiGh'^the apipellant's dismissal was fl connected was p,&ding«beiforeftte»Industrial'^^^^ Instead of approachingiie^Munalhn^^M^p3(l)(b),'^ %nagement approachedit under Section $|;(|^pp%T|[eapplicationmoyed by the Management!was dismissed.Jlffiappraachedthis Court in the first I li round of the %itI proiei®in^vh^^|i^^,• •''V t\ thatfcyV then the workmanhad sohgIiti|e^edies.underJ^ptipn^^/'pde recordwould also disclose that Sectrdm-33^^hich^^y^is a deemed reference under the IndustrialDisputesAct culminatedin (a) a specificfinding that the provision of Section 33 had been violated and (b) upon considerationof the additionalevidence led before the Tribunal,that the dismissal was justified under Section 33(2)(b). The workman approachedthis Court unsuccessfullyfirst before the learned Single

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LPA No. 486/2013

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0

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Judge and later in a LettersPatent Appeal beforeDivisionBenchwith respect to the findings of misconduct. It is stated that an appeal is pending before the Supreme Court with regard to the findings on misconduct recorded by the Tribunal.

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Parallelly,the dismissalunder Section33(2)(b)proceedingsled to initiationof writ proceedingsbefore this Court. In this round, the Management was successful bpth^efore theTeamed Single Judge and the Division Benpn. appeal|bv??SpecialLeave-^againstthis set of proceedings iS' p|piing Coiirt?,^W what is , i I apparentlythe final round, approachedthe appropriate 51' li li 5til ii li l\ IIII U11 I [J Govemmenh\seeking sanction||oss\prps,ecutethe Managemfent under iJ Section31 read with Spefipnp44>fme Acf^'HerC^gamthe premiseof these proceeding^a|%1^tirajDf^S^ J'f^fe^f-Govemmentof NrT h- t, • . JNCi, which IS the approprtat^Goverlmenf,''afterconsidering the

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entire record, rejected the request for sanction to prosecute the Management. This order is extracted below:-

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"Writpetition No.3115 of 1998 had been filed by you before the Hon 'ble High Court of Delhi. The following was one of thefollowing prayers in the W.P.:-

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"(d) issue a writ of mandamus or any other appropriate writ, order or direction directing the

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LPA No. 486/2013

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appropriate Government to initiate the prosecution proceedings against the respondents 3 to 7 for violating and contravening the Section 33 of the Industrial Disputes Act, 1947. " While deciding the Writ Petition, the Hon 'ble High Court in itsjudgment, declared:

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"84. A declaration is accordingly issued that the dismissal of the workmen is legal, valid and has attained finality.

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W.P.(C)No. 31ISJfPMS^fijgdJbythe workmen is dismissed. W,fif(0JIor^fMl/X^97^'^ap^W.P.(C) No. 2736/1098;^ampllowed as perfthe direction in para 59Jdnd:J8Hdbove.fN&Wosts." €,^4^.

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finder High QpAwas challen'ge^CinLPA NofmMl'dM^O0.The HoriiMeHigh CourtfpfDelhi in LPA 'W):i8:85Mf0OO4in para 19, notes that 'jNo doubt, the ThlBundVAhad by its order dated 13.06S997and 2.12.20dJji^^ldX$hatsection 33 q^the Industrial Disputes A^&f^^Mid^M'ten violated." 'Ir& the aforesdij^para0japhf^djl^fj;)le^p^hadonly referred to the oMerv0kPhsdftl^iM^jSMM.In its findkdicision, in para 23'jme^Hqn'ble^^^urtl^SjchHd;'^4l^Mfflly agree with the Letrded"^Singler3udge:^nd^dismissedthe appeal." ' ^

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The issue has specifically been decided against the Petitioners by the Learned Single Judge in W.P.(C) No. 3115/98. The observations of the Single Judge have been fully upheld in the LPA No. 885/04 judgment delivered on November 19, 2005.

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In view of the orders of the Hon 'ble High Court ofDelhi, no action can be initiated in respect ofyour application. "

LPA No. 486/2013

ft ^

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The learned Single Judge noticed all these circumstances and was of the opinion that the fresh attempt by the writ petitioner— workman is barred by resjudicata and that no directionswere called for.

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Counsel for the^.api€fiant|r^pntende'a^hatthe learned Single Judge fell into eifort^bebausetiMate the fmdihgs'fecordedby the IndustrialTnbunal^withrespteMte|%fion ofSdetioiixBShave not /•' V\ been set asige. It is subniitl^|«|®<i the Management did not challenge t|ose findings r^MI llhlt happened wasl that the Management%content™.;^i|^dfclfethe^licabilityof Section 33(2)(b)was succeisMfan^Thataspecthad^lttafndMhaiity. VOh'-rv, '• •''x' ^ A . j- . Tar?£5o\ri 5--^^ • o. A considerationdfme^ntire=record'i^ouldreveal that what is in dispute really is the exercise of discretion by the appropriate Governmentnotto prosecutethe Managementin the circumstancesof this case. Undoubtedly,the Industrial Tribunal did record findings adverseto the Managementas is evidentin para 27 of the order dated 02.12.2000under Section33. Did it, however,lead to the submission

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LPA No. 486/2013

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that the appropriate Government was bound to grant sanction to prosecute the management? This aspect necessarily has to be considered in the totality of the circumstances. These circumstances are that both the Management and the workman were aggrieved by the Tribunal's order. The Tribunal's order, or deemed award as the expression would be in terms of Section 33A, itself did not grant any

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relief to the workman.^Tlfe"workmen chalienged in writ and their li %

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On the otherfharid; the Mailag^hij^nt'Xsudcessfully^^ that II Section 33(i)(b) was applic^fli|jaMd^^ridingslandings on tha tt sc .ore were i! liilll J returned in liis favour. Of course,^thdftaspecthad not attained finality H j '"Af fit Iti w/A V/#r4 on account d| the pdh^ncm'^ot^pdciaKi.e before the '% J • Supreme Court. %

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'?S^£|cT X3i 7. Having regard iB^^t^esew-circ^istilhces, the appropriate

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Governmentappearsto have not acceptedthe workman's submission that sanctionto prosecuteunder Section 31 read with Section34 had to be granted. Consideringthe contentiousnature of the facts and the circumstances that this Court had earlier found, that the proceedings under Section 33(2)(b) to be maintainableand recorded findings of

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•LPA No. 486/2013

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this case in respectof Section33(2)(b)on accountof the award under Section 33A, it cannot be said that refusal to grant sanction to prosecute was arbitraryor vitiated on any account, i.e., overlooking relevant facts or taking relevant facts into account.

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In view of the above discussion,we are of the opinionthat no

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interferenceis calledfor with the findingsofthe learnedSingleJudge

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and the appealis conseqpellffwdisnaisged.J

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LPA No. 486/2013

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Page 7

Romi Sharma & Anr. v. Secretary Labour & Ors.

Case brief

What is this about?

What did the court decide?

Romi Sharma & Anr. v. Secretary Labour & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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