Mool Chand Kharaiti Ram Hospit vs Indiver
- Court
- Delhi High Court
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on:17.09.2026
Judgment pronounced on:27.10.2026
Judgment uploaded on: 27.10.2026
# CNR No. DLHC010002292005
+ W.P.(C) 3926/2005 & CM APPL. 47086/2026
MOOL CHAND KHARAITI RAM HOSPITAL.....Petitioner
versus
INDIVER .....Respondent
Advocates who appeared in this case:
For the Petitioner : Dr. M.Y. Khan, Adv.
For the Respondent :Mr. Fidel Sebastian, Adv. (through VC).
CORAM:
HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petition assails the award dated 03.08.2004
(“impugned award”) passed by the learned Tribunal in Complaint No.
5/1999 under the Industrial Disputes Act, 1947, whereby the learned
Tribunal noted that the abolition of the respondent’s post was non-
est and inoperative and consequently directed the reinstatement of the
respondent in service.
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2. Succinctly stated, the respondent was initially engaged vide
engagement letter dated 13.09.1993, on a temporary basis as an
Assistant Housekeeper w.e.f. 09.09.1993. Thereafter, vide appointment
letter dated 20.12.1995, the respondent was appointed permanently as
an Assistant Housekeeper .
3. The petitioner, vide notice dated 08.09.1998, informed the
respondent that the post of Assistant Housekeeper had been abolished.
Along with the said communication, the petitioner forwarded an amount
of Rs.3,462/-, stated to be equivalent to one month’s pay, to the
respondent. The said communication and the amount sent by the
petitioner were returned undelivered. The petitioner thereafter issued a
reminder to the respondent regarding the same, which was also returned
undelivered, noting that the respondent’s address could not be traced.
4. Upon learning about the abolition of the post and the consequent
cessation of his services, on 17.10.1998, the respondent, through the
Union, along with another workman, namely Sh. Gyan Chand, filed a
complaint under Section 33A of the Industrial Disputes Act, 1947.
5. On 09.12.2002, the learned Tribunal framed the following issues:
“ 1. Whether the management has violated the provision of
section 33 of I.D Act? OPC
2. Relief.”
6. By the impugned Award dated 03.08.2004, the learned Tribunal
noted that the petitioner had failed to establish that the respondent fell
outside the purview of Section 2(s) of the Industrial Disputes Act, 1947.
The learned Tribunal further observed that an Industrial Dispute No.
96/98 was pending at the time of abolition of the respondent’s post. It
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was noted that the respondent was an active member of the union and
was representing workmen in the said Industrial Dispute. In the view
thereof, the learned tribunal held that the abolition of the post, without
complying with Section 9A of the Industrial Disputes Act, 1947 was in
contravention with the statutory protections under Section 33 of
Industrial Disputes Act, 1947. Accordingly, the learned Tribunal held
the action of the petitioner to be non est and inoperative, and directed
the petitioner to reinstate the respondent in service.
7. Aggrieved thereby, the petitioner has preferred the present
petition.
8. Learned counsel for the petitioner submitted that the learned
Tribunal failed to appreciate the material evidence placed on record and
erred in holding that the abolition of the post amounted to a violation of
Section 33 of the Industrial Disputes Act, 1947.
9. He submitted that, insofar as the monetary consequences of the
impugned Award are concerned, the respondent has already received
wages under Section 17B of the Industrial Disputes Act, 1947 for the
period from the date of the Award till 29.02.2008, pursuant to the order
of this Court dated 25.01.2010. He submitted that, in view thereof, the
only surviving monetary claim, if any, pertains to the period between
the cessation of the respondent's service on 08.09.1998 and the date of
the impugned Award, i.e., 03.08.2004.
10. He submitted that there was no violation of Section 33 of the
Industrial Disputes Act, 1947 by the petitioner and that the learned
Tribunal erred in treating the abolition of the post as a change in service
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conditions requiring compliance with Section 9A of the Industrial
Disputes Act, 1947 . He further submitted that the posts of Sanitary
Superintendent and Assistant Housekeeper were abolished by the
petitioner as the services attached to those posts were no longer
required, and that the employees holding those posts were consequently
terminated on that account.
11. Learned counsel for the respondent opposed the petition. He
submitted that, despite the Award of the learned Tribunal, the petitioner
again terminated the respondent during the pendency of the present
proceedings. He further submitted that the respondent was reinstated
only because the petitioner was required to comply with Section 17B of
the Industrial Disputes Act, 1947, and that the subsequent termination
shows that the reinstatement was actuated by mala fide intention.
12. He further submitted that, after the subsequent termination, the
petitioner paid only part of the wages payable under Section 17B of the
Industrial Disputes Act, 1947. He also submitted that the petitioner
could not have terminated the respondent during the pendency of the
present writ petition without complying with the procedure prescribed
under Section 33 of the Industrial Disputes Act, 1947. He contended
that the subsequent termination is itself illegal.
13. This Court considered the submissions made by learned counsel
for the parties and the material placed on record.
14. It is imperative to note that when the present petition came up
before this Court on 08.04.2005, notice was issued and operation of the
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impugned Award was stayed, subject to the petitioner depositing a sum
of Rs.5,000/- towards litigation expenses.
15. During the pendency of the present petition, the petitioner
expressed its willingness to reinstate the respondent. Accordingly, vide
order dated 27.02.2008, the respondent agreed to rejoin service and was
directed to report before the Manager (Personnel) on 01.03.2008. The
respondent was consequently reinstated w.e.f. 01.03.2008 .
16. Thereafter, the respondent filed an application under Section 17B
of the Industrial Disputes Act, 1947. The said application was allowed
vide order dated 25.01.2010, whereby the petitioner was directed to pay
wages under Section 17B of the Industrial Disputes Act, 1947 for the
period 03.08.2004 , i.e., the date of the impugned Award, till
29.02.2008 , i.e., the date immediately preceding the respondent’s
reinstatement, at the last drawn wages or the minimum wages,
whichever was higher, subject to the undertaking contained in the said
order.
17. On 21.04.2010, this Court was informed that the petitioner had
complied with the order passed under Section 17B of the Industrial
Disputes Act, 1947 and that an amount of Rs.1,55,049/- had been
transferred to the respondent’s account.
18. Subsequently, the petitioner issued a notice dated 30.06.2023
under Section 9A of the Industrial Disputes Act, 1947, proposing a
change in the working hours of certain employees. According to the
petitioner, pursuant to a letter dated 06.05.2023, wages payable to the
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employees were revised to bring them in line with the wages payable at
Sir Ganga Ram Hospital.
19. The petitioner further states that disciplinary proceedings were
initiated against the respondent thereafter. A charge-sheet dated
10.07.2025 alleged that the respondent had worked for only seven days
out of sixty days during the months of May and June 2025 and had
committed serious misconduct. In response to the charge-sheet, the
respondent submitted a reply dated 18.07.2025 stating that his father
was suffering from fourth-stage cancer and required constant care. The
respondent explained that his absence was on account of his father's
critical medical condition.
20. A domestic enquiry was thereafter conducted, wherein the
charges against the respondent were held to have been proved. Pursuant
thereto, the petitioner terminated the respondent’s services again on
29.05.2026.
21. At the outset, it is necessary to note that the scope of interference
under Articles 226 and 227 of the Constitution of India with an award
passed by the learned Tribunal is limited. Interference is warranted only
where the findings are perverse, based on no evidence, suffer from
patent illegality, or disclose a jurisdictional error. This Court, while
exercising writ jurisdiction, cannot re-appreciate the evidence led
before the learned Tribunal as though rehearing the matter on facts. The
mere possibility of another view being taken on the evidence would not
justify interference . Reference in this regard may be made to the
judgment in International Airport Authority of India v. International
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Air Cargo Workers Union: (2009) 13 SCC 374 where the Hon’ble
Apex Court held as under: -
“47. It is true that in exercising the writ
jurisdiction, the High Court cannot sit in
appeal over the findings and award of the
Industrial Tribunal and therefore, cannot
reappreciate evidence. The findings of fact
recorded by a fact-finding authority should
ordinarily be considered as final. The
findings of the Tribunal should not be
interfered with in writ jurisdiction merely
on the ground that the material on which
the Tribunal had acted was insufficient or
not credible.
48. It is also true that as long as the findings
of fact are based on some materials which
are relevant, findings may not be interfered
with merely because another view is also
possible. But where the Tribunal records
findings on no evidence or irrelevant
evidence, it is certainly open to the High
Court to interfere with the award of the
Industrial Tribunal.”
22. As it is borne out from the impugned Award, the learned Tribunal
examined the evidence led by both sides. It was noted that during the
cross-examination of RW-1, Sh. M.K. Kaushik (Manager [personnel])
admitted that at the time of abolishing the post of the respondent, an
industrial dispute was pending.
23. The learned Tribunal also considered the evidence of CW-1, Sh.
Gyan Chand , who was working as Sanitary Superintendent and whose
case was sought to be relied upon for drawing parity with the
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respondent. In his deposition , CW-1 stated that, at the time when his
post was abolished, his services had also ended without complying with
Section 9A of the Industrial Disputes Act, 1947.
24. It would be apposite to refer to Section 9A of the Industrial
Disputes Act, 1947 and Section 33 of the Industrial Disputes Act, 1947;
the relevant provisions are reproduced below:
Section 9A of the Industrial Disputes Act, 1947:
9A. Notice of change. No employer who proposes to effect
any change in the conditions of service applicable to any
workman in respect of any matter specified in the Fourth
Schedule, shall effect such change,-
(a) without giving to the workmen likely to be affected by
such change a notice in the prescribed manner of the
nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice:
Provided that no notice shall be required for effecting any
such change-
(a) where the change is effected in pursuance of any
²[settlement or award]; or
(b) where the workmen likely to be affected by the change
are persons to whom the Fundamental and Supplementary
Rules, Civil Services (Classification, Control and Appeal)
Rules, Civil Services (Temporary Service) Rules, Revised
Leave Rules, Civil Service Regulations, Civilians in
Defence Services (Classification, Control and Appeal)
Rules or the Indian Railway Establishment Code or any
other rules or regulations that may be notified in this
behalf by the appropriate Government in the Official
Gazette, apply.
Section 33 of the Industrial Disputes Act, 1947 :
“33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendency of
proceedings. During the pendency of any conciliation
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proceeding before a conciliation officer or a Board or of
any proceeding before [an arbitrator or] a Labour Court
or Tribunal or National Tribunal in respect of an
industrial dispute, no employer shall,-
(a) in regard to any matter connected with the dispute,
alter, to the prejudice of the workmen concerned in such
dispute, the conditions of service applicable to them
immediately before the commencement of such
proceeding; or
(b) for any misconduct connected with the dispute,
discharge or punish, whether by dismissal or otherwise,
any workmen concerned in such dispute,save with the
express permission in writing of the authority before which
the proceeding is pending.
(2) During the pendency of any such proceeding in respect
of an industrial dispute, the employer may, in accordance
with the standing orders applicable to a workman
concerned in such dispute [or, where there are no such
standing orders, in accordance with the terms of the
contract, whether express or implied, between him and the
workman], -
(a) alter, in regard to any matter not connected with the
dispute, the conditions of service applicable to that
workman immediately before the commencement of such
proceeding; or
(b) for any misconduct not connected with the dispute, or
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) Notwithstanding anything contained in sub-section, no
employer shall, during the pendency of any such
proceeding in respect of an industrial dispute, take any
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action against any protected workman concerned in such
dispute-
(a) by altering, to the prejudice of such protected
workman, the conditions of service applicable to him
immediately before the commencement of such
proceedings; or
(b) by discharging or punishing, whether by dismissal or
otherwise, such protected workman save with the express
permission in writing of the authority before which the
proceeding is pending.
Explanation. For the purposes of this sub-section, a
"protected workman", in relation to an establishment,
means a workman who, being [a member of the executive
or other office bearer] of a registered trade union
connected with the establishment, is recognised as such in
accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be
recognised as protected workmen for the purposes of sub-
section (3) shall be one per cent. of the total number of
workmen employed therein subject to a minimum number
of five protected workmen and a maximum number of one
hundred protected workmen and for the aforesaid purpose,
the appropriate Government may make rules providing for
the distribution of such protected workmen among various
trade unions, if any, connected with the establishment and
the manner in which the workmen may be chosen and
recognised as protected workmen.
(5) Where an employer makes an application to a
conciliation officer, Board, '[an arbitrator, a] labour
Court, Tribunal or National Tribunal under the proviso to
sub-section (2) for approval of the action taken by him, the
authority concerned shall, without delay, hear such
application and pass, [within a period of three months
from the date of receipt of such application], such order in
relation thereto as it deems fit Provided that where any
such authority considers it necessary or expedient so to do,
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it may, for reasons to be recorded in writing, extend such
period by such further period as it may think fit:
Provided further that no proceedings before any such
authority shall lapse merely on the ground that any period
specified in this sub-section had expired without such
proceedings being completed]
25. It is discernible from the above that Section 9A of the Industrial
Disputes Act, 1947 requires an employer to comply with the prescribed
procedure before effecting a change in the conditions of service, while
Section 33 of the Industrial Disputes Act, 1947 prohibits an employer
from altering the service conditions of a workman to his prejudice
during the pendency of an Industrial Dispute, 1947 without following
the provisions of the Act.
26. The petitioner informed the respondent vide communication
dated 08.09.1998 (Ex. CW2/4) that the post of Assistant Housekeeper
stood abolished and forwarded an amount of Rs.3,462/-, stated to be
equivalent to one month’s pay. However, the record does not
demonstrate compliance with Section 9A of the Industrial Disputes Act,
1947. The learned Tribunal took a note of the fact that an Industrial
Dispute No. 96/98 was pending at the relevant time and that the
respondent was an active member of the union representing the
workmen in the dispute. The said communication merely conveyed a
decision that had already been taken and cannot be construed as the
statutory notice contemplated under Section 9A of the Industrial
Disputes Act, 1947.
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27. Before proceeding further, it is apposite to consider the
contention raised on behalf of the respondent that the termination of the
respondent on 29.05.2026, having been effected during the pendency of
the present petition, is in violation of Section 33 of the Industrial
Disputes Act, 1947.
28. The said contention cannot be accepted as Section 33 of the
Industrial Disputes Act, 1947 is only attracted during the pendency of a
conciliation proceeding or a proceeding before an arbitrator, Labour
Court, Tribunal or National Tribunal in respect of an industrial
dispute . The obligation imposed upon the employer under the said
provision was thus dependent upon the pendency of proceedings before
the authorities contemplated therein.
29. In the present case, Complaint No. 5/1999 had already
culminated in the Award dated 03.08.2004. The mere pendency of the
present writ petition cannot be equated with the pendency of
proceedings before the learned Tribunal within the meaning of Section
33 of the Industrial Disputes Act, 1947. The jurisdiction exercised by
this Court under Articles 226 and 227 of the Constitution is supervisory
in nature and does not revive or continue the proceedings which had
already culminated in an Award.
30. It is also relevant that, vide order dated 08.04.2005, this Court
had stayed the operation of the Award. The said order did not set aside
the Award or restore Complaint No. 5/1999 to the file of the learned
Tribunal. The distinction between a stay of an order and the
continuation of proceedings before the authority which passed the order
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is material in the present context. The Hon’ble Supreme Court
in B.P.L. Ltd. v. R. Sudhakar , (2004) 7 SCC 219 , held that the
protection under Section 33 of the Industrial Disputes Act, 1947
operates only when proceedings relating to an industrial dispute are
pending before the Tribunal or other specified statutory authority .
The said decision, though rendered in the context of a stay of the order
of reference itself, reiterates the essential requirement of pendency of
proceedings for attracting Section 33 of the Industrial Disputes Act,
1947. The relevant portion of B.P.L. Ltd. v. R. Sudhakar (supra) is
reproduced below:
“16. The effect of grant of stay of operation of the order of
industrial reference was that the Industrial Tribunal could not
take up the reference for adjudication. Consequently, no action
based on such reference could be taken by the Tribunal including
grant or refusal of approval to the disciplinary action under
Section 33(2) of the Act. The employer could not have, therefore,
approached the Tribunal for seeking approval for its disciplinary
action so long as the order of reference remained stayed by the
order of the b High Court. The industrial reference stood revived
only when the writ petition against the industrial reference was
finally disposed of by the High Court on 12-4-1999. The
industrial reference would be said to be pending only from 12-4-
1999. The action of dismissal of the services of the workmen was
taken on 31-3-1999. On that date, as a result of the order of the
stay of the operation of reference by the High Court on 11-3-
1999, no reference was pending for adjudication before the
Tribunal. The provisions of Section 33 of the Act are attracted
only when an industrial dispute is pending for adjudication and
not merely when an order of reference is made by the
Government. In the present case, proceedings were not pending
before the Tribunal because of the stay of the order of reference
itself. Both sub-section (1) and sub-section (2) of Section 33
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employ the language “during the pendency of any proceeding”
which clearly conveys that obligation on the part of the employer
under the said section of seeking "express permission" for the
purpose of sub-section (1) or "approval" for the purpose of sub-
section (2) arises only when there are proceedings pending on
industrial dispute before the Tribunal or other specified
statutory adjudicatory authorities under the Act .”
31. The grievance regarding the 2026 termination is a fresh cause of
action that must be raised through the appropriate statutory machinery.
It cannot be adjudicated within the scope of the writ petition challenging
the 2004 award.
32. Therefore, this Court holds that Section 33 of the Industrial
Disputes Act, 1947 is not attracted to the termination of the respondent
on 29.05.2026, as no proceeding was pending on the said date before
any of the authorities specified therein . At the same time, this Court
has not examined the correctness of the domestic enquiry conducted on
the charge-sheet dated 10.07.2025, or the merits of the termination, as
the same is not the subject matter of the present petition.
33. This Court, therefore, finds no perversity, patent illegality or
jurisdictional error so as to warrant interference in exercise of writ
jurisdiction. The finding returned by the learned Tribunal, therefore,
merits no interference and stands affirmed.
34. It is, however, relevant to note that more than two decades have
elapsed since the impugned award was passed. In the interregnum, the
respondent was reinstated in service with effect from 01.03.2008 and
received the benefit of Section 17B of the Industrial Disputes Act, 1947
for the period from 03.08.2004 till 29.02.2008, an amount of
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Rs.1,55,049/- having been paid to him pursuant to the order dated
25.01.2010. His services were, however, terminated afresh on
29.05.2026, which is a matter distinct from the subject matter of the
impugned award, and which constitutes an independent cause of action.
35. It is trite law that a finding of illegality in termination does not,
by itself, mandate reinstatement and full back wages in every case. The
Hon'ble Apex Court has repeatedly held that reinstatement is not an
automatic or mechanical consequence of an order of termination being
held illegal and that the relief must be moulded having regard to the
nature of employment, length of service and the surrounding
circumstances of the case. Reference in this regard can be made to the
decision of the Hon’ble Apex Court in Allahabad Bank v. Krishan Pal
Singh : (2021) 19 SCC 227 . The relevant extract of the same is
reproduced hereinbelow:
“8. The directions issued by the High Court of
Allahabad for reinstatement were stayed by this
Court on 23-8-2019 [Allahabad Bank v. Krishan
Pal Singh, 2019 SCC OnLine SC 2061] . During the
pendency of these proceedings, the respondent
workman had attained age of superannuation.
Though, there was strong suspicion, there was no
acceptable evidence on record for dismissal of the
workman. However, as the workman has worked
only for a period of about six years and he has
already attained the age of superannuation, it is a
fit case for modification of the relief granted by the
High Court. The reinstatement with full back wages
is not automatic in every case, where
termination/dismissal is found to be not in
accordance with procedure prescribed under law.
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Considering that the respondent was in effective
service of the Bank only for about six years and he
is out of service since 1991, and in the meantime,
respondent had attained age of superannuation, we
deem it appropriate that ends of justice would be
met by awarding lump sum monetary compensation.
We accordingly direct payment of lump sum
compensation of Rs 15 lakhs to the respondent,
within a period of eight weeks from today. Failing
to pay the same within the aforesaid period, the
respondent is entitled for interest @ 6% p.a., till
payment.”
36. The respondent is at liberty to challenge the termination dated
29.05.2026 before the appropriate forum, in accordance with law, and
all rights and contentions of the parties in that regard are left open.
Resultantly, the reliefs sought by the respondent in CM APPL.
47086/2026 cannot be granted in the present proceedings.
37. In view of the aforesaid subsequent developments, the direction
of reinstatement no longer survives for consideration in the present
proceedings. The respondent has already received the benefit of Section
17B of the Industrial Disputes Act, 1947 for the period from 03.08.2004
till 29.02.2008. Consequently, the only surviving issue is the
respondent's claim for monetary relief, if any, for the period between
08.09.1998 and 03.08.2004.
38. Having regard to the fact that the respondent stood reinstated and
received the benefits under Section 17B of the Industrial Disputes Act,
1947 for the interregnum, this Court considers it appropriate, in the
peculiar facts of the present case, to award a lump-sum compensation
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of Rs 3,00,000/- in full and final satisfaction of the relief surviving in
the present proceedings. The said amount shall be paid within four
weeks from the date of this judgment.
39. Accordingly, the award is modified to that extent and the petition
along with pending application(s), if any, stands disposed of in the
aforementioned terms.
AMIT MAHAJAN, J
OCTOBER 27, 2026
‘KDK’
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SEHGAL
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