Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
Reserved on: 2 November, 2017
th
Pronounced on: 8 March, 2018
+ W.P.(C) 16316/2004
RAJEEV SHARMA ..... Petitioner
Through: Mr. Omung Raj Gupta and
Mr. Naresh Kaushik, Advs.
versus
UOI & ORS. … Respondents
Through: Mr. Lalit Bhasin and Ms.Ratna
Dwivedi Dhingra, Advs.
AND
+ W.P.(C) 21983/2005
INDIAN AIRLINES LTD. ..... Petitioner
Through: Mr. Lalit Bhasin and Ms.Ratna
Dwivedi Dhingra, Advs.
versus
RAJEEV SHARMA … Respondents
Through: Mr. Omung Raj Gupta and
Mr.Naresh Kaushik, Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT
W.P.(C) 16316/2004 & 21983/2005 Page 1 of 23
C. HARI SHANKAR, J.
1. These writ petitions, which arise from a judgement, dated 2nd
August, 2004, passed by the National Industrial Tribunal at Mumbai
(hereinafter referred to as “the Tribunal”), were initially filed before
the High Court of Bombay and, consequent upon orders passed by the
Supreme Court, were transferred to this court.
2. The Tribunal, vide the impugned judgement, dismissed an
application, filed by Indian Airlines Ltd (hereinafter referred to as
“IAL”) under Section 33(2)(b) of the Industrial Disputes Act, 1947,
seeking approval of an order, dated 31st August, 1999/2nd September,
1999, dismissing the workman Rajeev Sharma from service. WP (C)
21983/2005, filed by IAL, prays that the impugned judgement be
quashed and set aside, while WP (C) 16316/2004, at the instance of
the workman, predictably seeks the enforcement and implementation
thereof.
3. The facts are brief. The workman, who was employed with
IAL, was, on 31st March, 1997, issued a charge-sheet, alleging that he
had been absent from work, for 413 days, during the period February
1996 to March 1997 (328 days in 1996 and 85 days in 1997) and had,
thereby, committed “misconduct”, within the meaning of Rule 28 (13)
of the Standing Orders (Regulations), stated to be applicable to IAL
and to the workmen employed therein. This was followed by another
charge-sheet, dated 21st April 1998, alleging that the workman had
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remained unauthorisedly absent from duty for 778 days, from
February, 1996 till March, 1998, comprising 328 days in 1996, 360
days in 1997 and 90 days in 1998 and, as in the case of the earlier
charge-sheet dated 31st March, 1997, requiring him to submit his
response, showing cause as to why his absence not be treated as
“misconduct” within the meaning of Clause 28 (13) of the Standing
Orders (Regulations). No response was received, from the workman,
to either of the said charge-sheets. An Inquiry Officer (hereinafter
referred to as “IO”) was appointed, who held and concluded the
inquiry on a single day, i.e. 4th September, 1998. The workman was
permitted the services of a Defence Assistant. IAL cited, as its lone
witness, Mr. Harish Chatola, Senior Office Superintendent, who, from
the record, confirmed the fact of absence, from duty, of the workman,
during the period stated in the charge-sheet. Cross-examination of Mr.
Chatola was offered, which was declined by the workman. The
workman, in his defence, cited certain adverse family circumstances,
i.e. (i) the hospitalisation of his brother, at Faridabad, consequent to
his meeting with an accident, which required the workman to take care
of him till March, 1997, (ii) an accident, suffered by the workman
himself, during the said period, in January, 1997, as a result whereof
he was also immobilised for 4 months, and (iii) infection developing
in the workman‟s leg, during that period, resulting in his being further
unable to rejoin duty till November, 1997. It was further contended,
by the workman, that he had reported, for work, on 24th November,
1997, whereupon he was directed to make an application through
proper channel, accompanied by a medical certificate of fitness. Since
W.P.(C) 16316/2004 & 21983/2005 Page 3 of 23
then, according to the workman, he had been running “from pillar to
post, for joining duties without any fruits” (as per the statement of the
workman before the IO). Medical certificates, allegedly evidencing
the treatment, of the workman‟s brother, from 19th February, 1996 to
3rd March, 1997, as well as his own treatment from 25th January,
1997 to 24th November, 1997, were also furnished, by the workman to
the IO.
4. The IO, vide his Inquiry Report, dated 20th November, 1998,
found the workman guilty of the charges against him, albeit without
any reasons. A copy of the said Inquiry Report, dated 20th November,
1998, was provided, to the workman, to respond thereto. The
workman submitted his response, to the said Inquiry Report, on 3rd
July, 1999. Vide order dated 31st August, 1999, the General Manager
(Engineering) in IAL wrote, to the workman, stating that, after
considering his reply, dated 30th July, 1999, the punishment of
“immediate dismissal from the services” of IAL, as recommended,
stood confirmed by him. A crossed cheque, representing one month‟s
salary of the workman, was annexed thereto.
5. Inasmuch as, at that time, another Reference (Reference No
NTB 1/90) was pending, before the Industrial Tribunal, involving the
workman, IAL applied, under Section 33(2)(b) of the Industrial
Disputes Act, 1947 (hereinafter referred to as “the ID Act”), for
approval of its decision to dismiss the workman from service. It is the
said application of IAL, under Section 33(2)(b) of the ID Act, which
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stands rejected, by the Industrial Tribunal, by the impugned
judgement, dated 2nd August, 2004, which, in turn, stands impugned,
at the instance of IAL, in the present proceedings.
6. The Industrial Tribunal has proceeded, essentially, on the
ground that the Standing Orders (Regulations) were not applicable to
the workman and that, therefore, the proceedings against him, being
relatable to Clause 28 (13) thereof, stood vitiated in their entirety.
Reliance was placed, by the Industrial Tribunal, for the said purpose,
on the judgement of the Supreme Court in Air India vs U.O.I., AIR
1996 SC 666.
7. Before me, both learned counsel conceded the applicability, to
the present case, of Air India (supra) . While Mr. Omung Raj Gupta,
appearing for the workman, submits that the Industrial Tribunal rightly
relied on the said decision, Mr. Lalit Bhasin, appearing for IAL, would
contend that the said decision itself clarified that, in respect of
employees who joined the services of the company prior to 1994, the
Standing Orders (Regulations) were applicable. Mr. Gupta, faced with
this submission, had sought an opportunity to place a brief written
note, on record, dealing therewith. The opportunity, as prayed, was
granted; however, it has been allowed to go abegging, as no written
note has been filed by Mr. Gupta.
W.P.(C) 16316/2004 & 21983/2005 Page 5 of 23
8. It would be appropriate, in the circumstances, to gravitate,
straightaway, towards the Air India decision, before travelling
elsewhere.
Air India vs U.O.I., AIR 1996 SC 666
9. “Indian Airlines” and “Air India International” were both
established by Section 3 of the Air Corporations Act, 1953
(hereinafter referred to as “the Air Corporations Act”), w.e.f. 15th
June, 1953. Section 8 of the Air Corporations Act read as under:
―8. Appointment of officers and other employees of
the Corporations.—
(1) For the purpose of enabling it efficiently to discharge its
functions under this Act each of the Corporations shall appoint
a managing director and, subject to such rules as may be
prescribed in this behalf, may also appoint such number of other
officers and employees as it may think necessary: Provided that
the appointment of the managing director and such other
categories of officers as may be specified after consultation
with the Chairman in such rules shall be subject to the approval
of the Central Government.
(2) Subject to the provisions of section 20, every person
employed by each of the Corporations shall be subject to such
conditions of service and shall be entitled to such remuneration
and privileges as may be determined by regulations made by the
Corporation by which he is employed.
(3) Neither the managing director nor such other employee
of either of the Corporations as may be specified in this behalf
by the Central Government shall, during his service in the
Corporation, be employed in any capacity whatsoever or
directly or indirectly have any interest in any air transport
W.P.(C) 16316/2004 & 21983/2005 Page 6 of 23
undertaking other than an undertaking of either of the
Corporations, or in any other undertaking which is interested in
any contract with either of the Corporations.”
Section 20 of the Air Corporations Act need not detain us, as it deals
with “officers and employees of existing air companies”, and IAL was
not an “existing air company”, as defined in clause (v) of Section 2 of
the said Act.
10. The power to make Regulations, under the Air Corporations
Act, was conferred by Section 45 thereof. For the purposes of the
present case, sub-sections (1), (2)(b) and (3) of Section 45 alone need
to be referred to. They read as under:
―45. Power of Corporations to make regulations –
(1) Subject to the provisions of sub-section (3), each of
the Corporations may by notification in the Official
Gazette, make regulations not inconsistent with this Act
or the rules made thereunder for the administration of the
affairs of the Corporation and for carrying out its
functions.
(2) In particular and without prejudice to the generality
of the foregoing power, any such regulations may provide
for all or any of the following matters, namely: –
(b) the terms and conditions of service of
officers and other employees of the Corporation
other than the managing director and officers of
any other categories referred to in section 44;
W.P.(C) 16316/2004 & 21983/2005 Page 7 of 23
(3) No regulation under clause (b) of sub-section (2)
shall be made except with the previous approval of the
Central Government.”
11. Various Regulations were framed, by Air India, as well as by
IAL, in exercise of the powers conferred by Section 45 of the Air
Corporations Act, with the previous approval of the Central
Government. The Supreme Court, in Air India (supra) , was
concerned with the Air India Employees Service Regulations, 1963
(hereinafter referred to as “the 1963 Regulations”), which were framed
by Air India under Section 45 of the Air Corporations Act, and
governed the terms and conditions of the employees of Air India.
12. At the time of enactment of the Air Corporations Act, the
Industrial Employment (Standing Orders) Act, 1946 (hereinafter
referred to as “the IE Act”) was already in force. The preamble to the
said Act itself declared that it was “an Act to require employers in
industrial establishments formally to define conditions of employment
under them”. The object of the said Act was expressly stated as the
requirement, of “employers and industrial establishments to define
with sufficient precision the conditions of employment under them
and to make the said conditions known to workmen employed by
them”. Sub-section (3) of Section 1 of the IE Act made it generally
applicable to “every industrial establishment wherein one hundred or
more workmen are employed, or were employed on any day of the
W.P.(C) 16316/2004 & 21983/2005 Page 8 of 23
preceding twelve months”. The expression “standing orders” was
defined, in clause (g) of Section 2 of the IE Act as meaning “rules
relating to matters set out in the Schedule” to the said Act. The
Schedule to the IE Act enumerated the following categories of
matters:
“1. Classification of Workman, e.g. whether permanent,
temporary, apprentices, probationers, or badlis.
2. Manner of intimating the Workman periods and hours of
work, holidays, pay-days and wage rates.
3. Shift working.
4. Attendance and late coming.
5. Conditions of, procedure in applying for, and the
authority which may grant leave and holidays.
6. Requirement to enter premises by certain gates, and
liability to search.
7. Closing and reporting of sections of the industrial
establishment, temporary stoppages of work and the
rights and liabilities of the employer and workmen arising
therefrom.
8. Termination of employment, and the notice thereof to be
given by employers and workmen.
9. Suspension or dismissal for misconduct, and acts or
omissions which constitute misconduct.
10. Means of redress for Workman against unfair treatment
or wrongful exactions by the employer or his agents
servants.
11. Any other matter which may be prescribed.”
W.P.(C) 16316/2004 & 21983/2005 Page 9 of 23
13. Section 3 of the IE Act required every employer, in an industrial
establishment to, within six months from the date on which the IE Act
became applicable to the said establishment, submit, to the Certifying
Officer, five copies of the draft Standing Orders proposed by him for
adoption in the establishment. Section 4 provided that such Standing
Orders would be certifiable, under the IE Act, if provision was made,
therein, for every matter set out in the Schedule, and the Standing
Orders were otherwise in conformity with the provisions of the Act,
and cast, on the Certifying Officer, or the appellate authority (against
the decision of the Certifying Officer), the responsibility to adjudicate
upon the fairness or reasonableness of the provisions of the Standing
Orders. Certification of Standing Orders was provided for, in Section
5 of the IE Act, which postulated that, on receipt of draft Standing
Orders under Section 3, the Certifying Officer would forward a copy
thereof to the trade union of the workmen in the establishment, or,
where no such trade union existed, to the workmen themselves, calling
for objections within 15 days. Thereafter, the said Section
contemplates grant of an opportunity of hearing, to the employer as
well as the workmen or their representatives, by the Certifying Officer
who, consequent thereupon, would decide whether the draft Standing
Orders were acceptable as such, or any modification or addition
thereto were required, and would make an order in writing
accordingly. Sub-section (3) of Section 5 stipulates that, once the
above exercise was conducted, the Certifying Officer would certify the
draft Standing Orders, and send copies, thereof, to the employer and
the workmen. Section 6 of the IE Act provides for an appeal, against
W.P.(C) 16316/2004 & 21983/2005 Page 10 of 23
the order of the Certifying Officer certifying Standing Orders, in
respect of the establishment, by the employer, workmen, trade union
or other prescribed representatives of the workmen, who felt
themselves aggrieved thereby. Section 12-A of the IE Act provided
that, for the period commencing on the date on which the IE Act
became applicable to any industrial establishment, and ending with the
date on which Standing Orders, finally certified under the said Act,
came into operation in the said establishment, “the prescribed model
standing orders shall be deemed to be adopted in that establishment”.
For this purpose, Section 15 empowered the appropriate Government
to, by notification in the Official Gazette, make Rules, to carry out the
purposes of the IE Act, among which purposes has been included, by
sub-section (2)(b), the “setting out of model standing orders for the
purposes of” the IE Act.
14. In or around 1982, proceedings, under the IE Act, were
initiated, against Air India, by the Deputy Chief Labour
Commissioner, for certification of Standing Orders. Air India
contended that the IE Act was not applicable to it. The Certifying
Officer rejected the said contention, and proceeded to certify the
Standing Orders to be applicable to Air India. Air India‟s appeal,
thereagainst, was rejected, which prompted Air India to move the
High Court in writ proceedings. The said challenge, by Air India, was
also unsuccessful, as the High Court held that the IE Act was a special
Act, and applied to the employees of Air India, notwithstanding the
W.P.(C) 16316/2004 & 21983/2005 Page 11 of 23
provisions of the Air Corporations Act. Air India, consequently,
approached the Supreme Court.
15. On 29th January, 1994, the Air Corporations (Transfer of
Undertakings and Repeal) Act, 1994 (hereinafter referred to as “the
1994 Repeal Act”), came into force. Section 11 of the said Act
repealed the Air Corporations Act, from that day, i.e. w.e.f. 29th
January, 1994. Relying thereon, the employees of Air India sought to
contend, before the Supreme Court, that, with the repeal of the Air
Corporations Act, the 1963 Regulations also perished. Consequently,
it was sought to be contended, Air India could not avoid certification
of Standing Orders under the IE Act.
16. Per contra , Air India sought to contend that the 1963
Regulations were saved by Section 8 of the 1994 Repeal Act. It would
be appropriate to reproduce Section 8 of the 1994 Repeal Act, thus:
―8. Provisions in respect of officers and other employees of
corporations. –
(1) Every officer or other employee of a corporation (except
a Director of the Board, Chairman, Managing Director or any
other person entitled to manage the whole or a substantial part
of the business and affairs of the corporation) serving in its
employment immediately before the appointed day shall in so
far as such officer or other employee is employed in connection
with the undertaking which has vested in a company by virtue
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of this Act., become, as from the appointed day an officer or
other employee, as the case may be, of the company in which
the undertaking has vested and shall hold his office or service
therein by the same tenure, at the same remuneration, upon the
same terms and conditions, with the same obligations and with
the same rights and privileges as to leave, passage, insurance,
superannuation scheme, provident fund, other funds, retirement,
pension, gratuity and other benefits as he would have held under
that corporation if its undertaking had not vested in the
company and shall continue to do so as an officer or other
employee, as the case may be, of the company or until the
expiry of a period of six months from the appointed day if such
officer or other employee opts not to be the officer or other
employee of the company within such period.
(2) Where an officer or other employee of a corporation opts
under sub-section (1) not to be in the employment or service of
the company in which the undertaking of that corporation has
vested, such officer or other employee shall be deemed to have
resigned.
(3) Notwithstanding anything contained in the Industrial
Disputes Act., 1947 or in any other law for the time being in
force, the transfer of the services of any officer or other
employee of a corporation to a company shall not entitle such
officer or other employee to any compensation under the said
Act., or under any other law for the time being in force and no
such claim shall be entertained by any court, tribunal or other
authority.
(4) The officers and other employees who have retired before
the appointed day from the service of a corporation and are
entitled to any benefits, rights or privileges shall be entitled to
receive the same benefits, rights or privileges from the company
in which the undertaking of that corporation has vested.
W.P.(C) 16316/2004 & 21983/2005 Page 13 of 23
(5) The trusts of the Provident Fund or Pilots Group
Insurance and Superannuation Scheme of the corporation and
any other bodies created for the welfare of officers or
employees would continue to discharge their functions in the
company as was being done hitherto in the corporation. Tax
exemption granted to Provident Fund or Pilots Group Insurance
and Superannuation Scheme would continue to be applied to the
company.
(6) Notwithstanding anything contained in this Act or in the
Companies Act, 1956 or in any other law for the time being in
force or in the regulations of a corporation, no Director of the
Board, Chairman, Managing Director or any other person
entitled to manage the whole or a substantial part of the
business and affairs of that corporation shall be entitled to any
compensation against that corporation or against the company,
as the case may be, for the loss of office or for the premature
termination of any contract of management entered into by him
with that corporation.”
17. The Supreme Court, speaking through Bharucha, J. (as His
Lordship then was) categorically rejected the contention of Air India,
in the following words (in para 9 of the report):
“Section 8 of the 1994 Act does not in express
terms save the said Regulations, nor does it mentione
them. Section 8 only protects the remuneration, terms
and conditions and rights and privileges of those who
were in Air India’s employment when the 1994 Act came
into force. Such saving is undoubtedly “to quieten
doubts” of those Air India employees who were then in
service. What is enacted in Section 8 does not cover
those employees who joined Air India’s service after the
1994 Act came into force. The limited saving enacted in
W.P.(C) 16316/2004 & 21983/2005 Page 14 of 23
Section 8 does not, in our opinion, extend to the said
Regulations.”
(Emphasis supplied)
18. In Air India (supra) , therefore, the direction, to Air India, to
provide draft Standing Orders for certification, under the IE Act, was
opposed by Air India, on the ground that the conditions of its
employees were governed by the Regulations issued under the Air
Corporations Act. As against this, the employees contended that the
Air Corporations Act itself stood repealed, w.e.f. 29th January, 1994,
and that, therefore, this argument of Air India could not sustain. The
Supreme Court effectively upheld the said contention of the
employees. Air India‟s submission, advanced per contra , to the effect
that Section 8 of the 1994 Repeal Act saved the provisions of the Air
Corporations Act, and the Regulations issued thereunder, were
rejected, clarifying, at the same time, that the provisions of the Air
Corporations Act , and, consequently, of the Regulations issued
thereunder, would stand saved in respect of employees who had joined
the services of Air India prior to 29th January, 1994.
19. The law enunciated by the Supreme Court in Air India (supra)
was applied, as it is, by a Division Bench of this Court (speaking
through Sanjiv Khanna, J.), in Indian Airlines vs. U.O.I., 2006 (3)
SLJ 461 (Del) , adjudicating a writ petition, filed by IAL, challenging
the orders of the Certifying Officer and the appellate authority, under
the IE Act, holding the said Act to be applicable to IAL. It was
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contended, before this court, in the said case, on behalf of IAL, that
the IE Act did not apply to it, in view of the Service Regulations,
framed under the Air Corporations Act, which was a special statute.
This Court rejected the submissions of IAL, relying, for the said
purpose, on the judgement of the Supreme Court in Air India (supra) .
It was categorically held that, in view of the said decision, there could
be no doubt about the fact that “the provisions of the Standing Orders
Act (were) clearly applicable to the petitioner”. The attempt, of IAL,
to escape the rigour of the judgement in Air India (supra) , by arguing
that certain aspects had not been considered by the Supreme Court in
the said decision, was also, needless to say, quelled by this Court in no
uncertain terms, ruling, unexceptionably, that it was not open to this
Court to revisit a decision of the Supreme Court, in view of the
mandate of Article 141 of the Constitution of India. This decision did
not, however, deal with the destination between “pre-1994” and “post-
1994” employees of IAL, qua the applicability of the Air Corporations
Act, and the Regulations framed thereunder.
20. Prior to the above decision, another Division Bench of this court
had occasion to deal with a similar issue, in CWP 5677/97 (Capt.
Sanjeev Marwah vs Indian Airlines Ltd) , which was disposed of, by a
short order dated 6th January, 1998, which read thus:
“The learned counsel for the petitioner has contended that
the Regulations under which the enquiries being held
against the petitioner does not survive in view of the Air
Corporations (Transfer of Undertakings and Repeal) Act,
1994. The learned counsel has relied on a decision of the
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Supreme Court in Air India vs. Union of India and
others, JT 1995 (5) FC 578 in this behalf. In para 9 of
the said judgement a distinction has been drawn between
pre-1994 employees and post-1994 employees. The
petitioner is admittedly a pre-1994 employee. Therefore,
even as per the said decision of the Supreme Court, the
petitioner does not get benefit. Mr. Bhasin, the learned
counsel appearing on behalf of the respondent submits
that assuming for the sake of argument, though not
admitting, that the Regularizations do not apply, the
Model Standing Orders will continue to apply to the
employees like the petitioner and these Orders also
envisage departmental inquiries in such matters.
In view of the above we find no merit in this petition.
We would also like to note here that the petitioner has
admittedly raised this point before the Enquiry Officer
and the Enquiry Officer may also deal with the same at
the appropriate stage. The writ petition is dismissed.”
21. The Special Leave Petition, preferred by Capt. Sanjeev
Marwah, challenging the above decision of this court, was also
dismissed, by the Supreme Court, vide order dated 19th January, 1998,
which states that the parties were “heard at length”. It may, therefore,
be safely assumed that the judgement of this court was accorded the
imprimatur of the Supreme Court.
The reasoning in the impugned Award
22. The reasoning of the Industrial Tribunal, as contained in
paragraphs 8 to 10 of the impugned Award, reads as under:
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“8. The learned counsel for company did not dispute the
proposition that the workman was chargesheeted under the
Standing Orders (regulations) framed under section 45 of the
Air Corporations Act. But it was argued that clause 28 of
Standing Orders (Regulations) published by the previous
consent of Central Government were applicable. It was sought
to be argued that establishments of the Corporation was not a
Industrial Establishment because the payment of Wages Act
1936 was amended only in the year 1965. In the opinion of this
tribunal, this controversy has been settled by the Supreme court
on another ground. It is not in dispute that the company issued
the chargesheet in year 1998 much after the commencement of
the Air Corporations (Transfer of Undertakings and Repeal) Act
1994 (The Act of 1994 for short). It is also clear that after
commencement of Act on 19/1/94 and issuance of notification
of „appointed day‟ the Indian Airlines ceased to be a
Corporation. It became Indian Airlines Ltd. an Undertaking of
Indian Airlines. The Corporation became a Company by
Statutory Transfer. The Air Corporations Act 1953 stood
repealed from the appointed day. Since the Act of 1953
repealed, the only question is if the Standing Orders
(Regulation) framed under the old Act were saved. In opinion
of this tribunal the Supreme Court has set the matter at rest. In
the case of Air India vs Union of India 1995 SCC (L & S)
1152 it has been laid down that regulations have not been
served. True, this case relating to Air India but both Air India
and Indian Airlines were corporations governed by the Act of
1953. Both of them were vested in the two Public Ltd
Companies. The Supreme Court has made the following
observations after considering section 8 of the Act of 1994.
“8. In our view, if subordinate legislation is to survive
the repeal of its parent statute, the repealing statute must
say so in so many words and by mentioning the title of
the subordinate legislation. We do not think that there is
room for implying anything in this behalf.
W.P.(C) 16316/2004 & 21983/2005 Page 18 of 23
9. Section 8 of the 1994 Act does not in express terms
save the said Regulations, nor does it mention them.
Section 8 only protects the remuneration, terms and
conditions and rights and privileges of those who were in
Air India‟s employment when the 1994 Act came into
force. Such savings is undoubtedly “to quieten doubts”
of those Air India employees who were then in service.
What is enacted in Section 8 does not cover those
employees who joined Air India‟s service after the 1994
Act came into force. The limited saving enacted in
Section 8 does not, in our opinion, extend to the said
Regulations.
10. Holding as we do that the said Regulations ceased
to be effective on 29/1/1994 the very foundation of Air
India‟s case no longer exists. No consideration of other
arguments is, therefore, necessary.”
Since the regulations did not apply the workman was not
governed by the Standing Orders (Regulations) applicable to
him as a man working in factory. The workman could not have
been charged for a committing a misconduct covered by clause
28 (13) of Standing Order (Regulations) applicable to workman
working in a factory. Therefore, the framing of chargesheet, the
procedure followed would not be in accordance with section 33
(2) of the Act 1961. It is well established that compliance of
Section 32 (1) of the Act is mandatory as held by the Supreme
Court in the case of Lord Krishna Textile Mills vs. its workman,
AIR 1961 SC 860.
Therefore, the enquiry as well as the order of dismissal is
invalid.
The result of the aforesaid discussion is that the workman could
not have been charged under regulations which had no legal
existence so far as the company was concerned. It is obvious
W.P.(C) 16316/2004 & 21983/2005 Page 19 of 23
the workman would be governed by Model Standing Orders.
Section 3 read with the definition of company in Act of 1994
clearly indicates that the company came into existence prior to
merger in 1994. Thereafter the Indian Airlines Corporation
merged into it. The establishments of the company are covered
by the definition of establishment under section 2 (e) (1) of the
Industrial Employment (Standing Orders) Act 1946 for the
reason they were covered by definition of Establishment under
section 2(11)(aa) of the Payments of Wages Act 1936. On date
of merger of the Corporation in the company in the year 1994.
The definition of establishment in the Payment of Wages was
under section was amended to include the Air Transport service
under section 2(ii)(aa) of Payment of Wages w.e.f. 1/2/65. At
the time, the Indian Airlines Ltd came into existence, the
Industrial Employment (Standing Orders) Act 1946 became
applicable to its establishments. Therefore, there was no
vacuum. So long as the Certified Standing Orders are not
framed the company is governed by Model Standing Orders as
per section 12 A of the Act 1946. Since the chargesheet was
framed under the non-existent regulations, and the entire
procedure prior to enquiry and after the enquiry was as per the
regulations, it cannot be held that workman was dismissed in
accordance with the Standing Orders applicable to him. This
tribunal cannot grant approval to an order which was in
derogation of mandatory procedure under section 33 (2) of the
Act. The order dated 31/8/99 2/9/99 sought to be approved is
illegal. This tribunal cannot put its seal of approval to an illegal
order. The other points raised by the learned counsel for the
workman need not be discussed. The result is that this
application fails and is accordingly dismissed.”
Analysis and Order
23. In the wake of the aforementioned decisions, it is obvious that
the decision, of the Industrial Tribunal, that the Standing Orders
(Regulations) under the Air Corporations Act were not applicable to
W.P.(C) 16316/2004 & 21983/2005 Page 20 of 23
the workman, and that, therefore, he would be governed by the Model
Standing Orders, by virtue of the IE Act, cannot sustain in law. The
Supreme Court, in Air India (supra) , has clearly held that the “terms
and conditions of service” of pre-1994 employees of Air India stood
saved by Section 8 of the 1994 Repeal Act. Among the said terms and
conditions, were the Standing Orders (Regulations), framed under
Section 45 of the Air Corporations Act. Clause 28 (13) of the said
Standing Order (Regulations) would, therefore, apply to the workman,
and the invocation, thereof, by IAL, cannot be regarded as
incompetent or without jurisdiction. A Division Bench of this court
has, in Capt. Sanjeev Marwah (supra) , expressed as much, and the
said decision binds me, especially as the Special Leave Petition,
preferred, thereagainst, by the employee, was dismissed by the
Supreme Court, specifically recording, while doing so, that the matter
had been heard at length.
24. Learned counsel for the respondent has been unable to bring, to
my notice, any decision, which could efface, or even dilute, the effect
of Air India (supra) or of Capt. Sanjeev Marwah (supra) . Despite
requesting for, and being granted, specific opportunity, by me, to do
so, nothing was forthcoming from the respondent.
25. Resultantly, following Air India (supra) and Capt. Sanjeev
Marwah (supra) , I am constrained to hold that the impugned
judgement, dated 2nd August, 2004, is unsustainable in law.
W.P.(C) 16316/2004 & 21983/2005 Page 21 of 23
26. Having said that, however, the matter cannot rest there, as the
Industrial Tribunal has, in para 10 of the impugned judgement,
observed that, in view of its finding that the Regulations, whereunder
the workmen had been charged-sheeted, were no longer in effect after
29th January, 1994, “no consideration of other arguments” was
necessary. The Industrial Tribunal having chosen not to examine any
other aspect of the application, filed by IAL, under Section 33(C)(2)
of the ID Act, the said application would have to be remanded, to the
Industrial Tribunal, to be decided on merits, uninfluenced by the
impugned judgement. It would be entirely inappropriate for me to
express any opinion thereon, as any such expression of opinion would
amount to usurpation, by me, of the jurisdiction statutorily vested, by
Section 33(C)(2) of the ID Act, on the Industrial Tribunal.
27. Consequent on the above discussion, these writ petitions are
disposed of in the following terms:
(i) WP (C) 21983/2005, filed by Indian Airlines Ltd, is
allowed, to the extent that the impugned judgement, dated 2nd
August, 2004, passed by the National Industrial Tribunal at
Mumbai in Approval Application No NTB-72 of 1999, is
quashed and set aside. The said Approval Application is
remanded, to the Industrial Tribunal, to be decided on merits.
In view of the fact that the present proceedings have been
pending for over two decades, the Industrial Tribunal is
W.P.(C) 16316/2004 & 21983/2005 Page 22 of 23
requested to decide the aforementioned Approval Application as
expeditiously as possible and, in any case, within 3 months
from the date of presentation, before it, of a certified copy of
this judgement. The principles of natural justice shall be strictly
complied with, and both parties would be granted a fair
opportunity of hearing, without allowing either party to seek
unnecessary adjournment.
(ii) As a consequence, WP (C) 16316/2004, filed by the
workman Rajeev Sharma, is dismissed.
(iii) In case any benefits, by way of back wages or otherwise,
have been granted to the workman Rajeev Sharma, consequent
to the passing of the impugned judgement, they shall not be
withdrawn or recovered, and would abide by the outcome of the
decision, of the Industrial Tribunal, in Approval Application No
NTB-72 of 1999.
28. There shall be no order as to costs.
C.HARI SHANKAR
(JUDGE)
MARCH 08, 2018
HJ
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