Delhi HC turns 2004 reinstatement award into Rs 3 lakh lump sum; writ pendency does not trigger Section 33
Justice Amit Mahajan upheld the Tribunal finding that Mool Chand Hospital abolished an Assistant Housekeeper post during a pending industrial dispute without a Section 9A notice, but held that the 2026 termination during the writ petition is a fresh cause of action outside Section 33.
The Delhi High Court has closed a writ petition that Mool Chand Kharaiti Ram Hospital filed in 2005 against an Industrial Tribunal award, affirming the Tribunal's finding that the hospital could not abolish the post of its Assistant Housekeeper, Indiver, while an industrial dispute in which he was representing workmen was pending, but replacing the direction to reinstate him with a lump sum of Rs 3,00,000. Justice Amit Mahajan, sitting as a single judge, held that reinstatement no longer survived for consideration because the workman had in fact been taken back in 2008, paid wages under Section 17B of the Industrial Disputes Act for the years in between, and then dismissed again in May 2026 after a domestic enquiry. That second dismissal, the court held, is a fresh cause of action to be pursued before the statutory forum. The workman's argument that the hospital needed the court's permission under Section 33 before dismissing him while the writ was pending was rejected: Section 33 operates only while proceedings are pending before a conciliation officer, arbitrator, Labour Court or Tribunal, and the pendency of a writ petition against an award is not that.
A post abolished while the union was before the Tribunal
Indiver joined the hospital on a temporary basis as Assistant Housekeeper with effect from 9 September 1993 under an engagement letter of 13 September 1993, and was made permanent in the same post by an appointment letter of 20 December 1995. On 8 September 1998 the hospital wrote to him that the post of Assistant Housekeeper had been abolished, enclosing Rs 3,462 as a month's pay. The letter and the money came back undelivered. A reminder was also returned, with a note that his address could not be traced.
On 17 October 1998 Indiver, acting through his union and together with another workman, Gyan Chand, who had held the post of Sanitary Superintendent, filed a complaint under Section 33A of the Industrial Disputes Act, the route for a workman who says his employer has acted in breach of Section 33. The Tribunal framed two issues on 9 December 2002: whether the management had violated Section 33, and relief.
Its award of 3 August 2004 in Complaint No. 5/1999 went against the hospital. The Tribunal found that the hospital had not shown Indiver fell outside the definition of workman in Section 2(s). Industrial Dispute No. 96/98 was pending when his post was abolished, and he was an active member of the union representing workmen in that dispute. The hospital's manager (personnel), M.K. Kaushik, examined as RW-1, admitted in cross-examination that an industrial dispute was pending at the time. Gyan Chand, as CW-1, deposed that his own services had ended on the abolition of his post without compliance with Section 9A. The Tribunal held that abolishing the post without the notice of change required by Section 9A contravened the protection in Section 33, declared the hospital's action “non est and inoperative” and directed reinstatement.
Twenty-one years of a writ petition
The hospital challenged the award in W.P.(C) 3926/2005. On 8 April 2005 the court issued notice and stayed the award, subject to the hospital depositing Rs 5,000 towards litigation expenses. The stay did not end the matter. During the petition the hospital offered to take Indiver back; by order of 27 February 2008 he agreed to rejoin and was directed to report to the Manager (Personnel) on 1 March 2008, from which date he was reinstated.
He then applied under Section 17B, the provision under which a workman whose reinstatement award is under challenge is paid wages while the challenge is pending. The court allowed the application on 25 January 2010, directing payment for the period from 3 August 2004, the date of the award, to 29 February 2008, the day before reinstatement, at the last drawn wages or the minimum wages, whichever was higher. On 21 April 2010 the court was told that Rs 1,55,049 had been transferred to his account.
The record then jumps more than a decade. On 30 June 2023 the hospital issued a notice under Section 9A proposing a change in the working hours of certain employees; according to the hospital, wages had been revised by a letter of 6 May 2023 to bring them into line with Sir Ganga Ram Hospital. A charge sheet of 10 July 2025 alleged that Indiver had worked only seven of sixty days in May and June 2025. His reply of 18 July 2025 said his father had fourth-stage cancer and needed constant care. A domestic enquiry found the charges proved, and the hospital terminated his services a second time on 29 May 2026. He then moved CM APPL. 47086/2026 in the pending writ petition.
What each side asked for
Dr M.Y. Khan, for the hospital, argued that the Tribunal had misread the evidence and was wrong to treat the abolition of a post as a change in conditions of service requiring a Section 9A notice. The posts of Sanitary Superintendent and Assistant Housekeeper had been abolished because the services attached to them were no longer required, and the employees holding them were let go on that account. On money, he submitted that Indiver had already received Section 17B wages from the date of the award up to 29 February 2008, so the only surviving monetary claim, if any, was for the period between the cessation of service on 8 September 1998 and the award of 3 August 2004.
Mr Fidel Sebastian, appearing for Indiver through video conferencing, opposed the petition and raised the second termination. The hospital, he said, had reinstated his client only because Section 17B forced its hand, and the subsequent dismissal showed the reinstatement was mala fide. Only part of the Section 17B wages had been paid after that dismissal. And the hospital could not have terminated him during the pendency of the writ petition without following the procedure in Section 33, which made the 2026 termination itself illegal.
The Tribunal finding stands
Justice Mahajan first marked out the limits of the court's role. Under Articles 226 and 227 the court interferes with a Tribunal award only where the findings are perverse, based on no evidence, patently illegal or beyond jurisdiction; it does not re-appreciate the evidence as though rehearing the case, and the possibility of another view is no ground. The judgment quotes paragraphs 47 and 48 of International Airport Authority of India v. International Air Cargo Workers Union, (2009) 13 SCC 374, where the Supreme Court said the High Court cannot sit in appeal over an Industrial Tribunal's findings, but may interfere where findings rest on no evidence or irrelevant evidence.
Measured against that standard the award held. The Tribunal had examined both sides' evidence, including RW-1's admission that a dispute was pending and CW-1's account of his own post. The court set out Sections 9A and 33 in full. Section 9A bars an employer from changing conditions of service on any matter in the Fourth Schedule without giving the affected workmen notice in the prescribed manner, and within twenty-one days of that notice. Section 33 bars an employer, during the pendency of conciliation or adjudication of an industrial dispute, from altering to the workmen's prejudice the conditions of service connected with the dispute, or from punishing them for misconduct connected with it, without the express written permission of the authority seized of the dispute; for matters not connected with the dispute, the employer may act in accordance with standing orders but must pay a month's wages and apply for approval before discharging or dismissing a workman.
The hospital's letter of 8 September 1998, Ex. CW2/4, told Indiver that his post stood abolished and enclosed a month's pay. The record, the judge found, did not show compliance with Section 9A. The letter merely conveyed a decision already taken; it could not be treated as the statutory notice of a proposed change. With Industrial Dispute No. 96/98 pending and Indiver an active union member representing the workmen in it, the Tribunal's conclusion disclosed no perversity, patent illegality or jurisdictional error. The finding was affirmed.
Section 33 needs a pending dispute, not a pending writ
The workman's attack on the 2026 termination failed on the text of Section 33. The provision is attracted only 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 employer's obligation to seek permission or approval depends on the pendency of proceedings before one of those authorities. Complaint No. 5/1999 had culminated in the award of 3 August 2004. The pendency of a writ petition against that award could not be equated with the pendency of proceedings before the Tribunal; the jurisdiction under Articles 226 and 227 is supervisory and does not revive or continue proceedings that have ended in an award.
Nor did the stay of 8 April 2005 change that. The stay did not set aside the award or restore the complaint to the Tribunal's file, and the judge drew a distinction between staying an order and continuing the proceedings before the authority that passed it. He relied on B.P.L. Ltd. v. R. Sudhakar, (2004) 7 SCC 219, where the Supreme Court held that Section 33 operates only while proceedings on an industrial dispute are pending before the Tribunal or another specified statutory authority. That case concerned a stay of the order of reference itself, so that no reference was pending when the workmen were dismissed; the judge treated it as reiterating the requirement of pendency. The grievance about the 29 May 2026 termination was therefore a fresh cause of action, to be raised through the statutory machinery, and could not be adjudicated inside a writ petition about the 2004 award. The court expressly declined to examine the correctness of the domestic enquiry on the charge sheet of 10 July 2025 or the merits of the dismissal, left all rights and contentions on that question open, and held that the reliefs sought in CM APPL. 47086/2026 could not be granted in these proceedings.
Why reinstatement became Rs 3 lakh
With the award affirmed, the question was what relief still made sense more than two decades on. Indiver had been reinstated from 1 March 2008 and had received Rs 1,55,049 under Section 17B for the period from the award to his return. His services had since been terminated afresh, on a matter distinct from the award and constituting an independent cause of action. The direction to reinstate therefore no longer survived for consideration in the petition, and the only surviving issue was his claim to money for the period between 8 September 1998 and 3 August 2004.
The judge invoked the settled position that a finding of illegal termination does not automatically carry reinstatement with full back wages; relief must be moulded to the nature of the employment, the length of service and the surrounding circumstances. He quoted Allahabad Bank v. Krishan Pal Singh, (2021) 19 SCC 227, where the Supreme Court, dealing with a workman who had served about six years, had been out of service since 1991 and had reached superannuation, substituted Rs 15 lakh in lump sum compensation for the reinstatement ordered by the High Court. In the peculiar facts here, with Indiver already reinstated and already paid for the interregnum, the court considered a lump sum of Rs 3,00,000 appropriate in full and final satisfaction of the relief surviving in the proceedings.
Order
The Tribunal's finding that the abolition of the post violated Section 33 of the Industrial Disputes Act stands affirmed. The award of 3 August 2004 is modified to the extent that, in place of reinstatement, the hospital is to pay Indiver Rs 3,00,000 within four weeks of the judgment in full and final satisfaction of the surviving relief. Section 33 was held not to apply to the termination of 29 May 2026, and the correctness of the enquiry and the merits of that termination were left open for Indiver to challenge before the appropriate forum. The reliefs sought in CM APPL. 47086/2026 were declined. The petition, argued by Dr M.Y. Khan for the hospital and Mr Fidel Sebastian for the workman, was reserved on 17 September 2026 and disposed of along with pending applications on 27 October 2026.