SBCWP No.3842/2002. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.3842/2002. Ram Singh Vs. Rajasthan State Road Transport Corporation & Ors. Date of order : February 12, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri B.L. Gupta for the petitioner. Shri Mukesh Kumar Verma for the respondents. **** Reportable BY THE COURT :- This writ petition has been filed against the order dated 3/6/1991 whereby, petitioner, when he was reinstated in service, was treated as suspended from the date of his removal. 2) Petitioner was Driver with the respondents- R.S.R.T.C. He was placed under suspension by the Assistant Mechanical Engineer (Pension) Sri Ganganagar vide order dated 12/12/1987 in contemplation of departmental enquiry. Petitioner was served with the charge-sheet on 23/2/1988 for causing an accident on 12/12/1987. Petitioner submitted reply to the aforesaid charge-sheet. Petitioner was later dismissed from service by order of the Divisional SBCWP No.3842/2002. 2 Mechanical Engineer Bikaner vide order dated 8/2/1989. Since a reference was pending before the Industrial Tribunal with regard to service conditions of the employees of the R.S.R.T.C., respondents moved an application before the Indsutrial Tribunal for approval of removal of the petitioner. Industrial Tribunal vide its order dated 4/4/1991 rejected the application filed by the respondents under Section 33 (2)(b) of the Industrial Disputes Act, 1947 (for short, the "Act") and thus refused to approve his removal. Personal Officer R.S.R.T.C. wrote a letter to the Divisional Mechanical Engineer Bikaner on 6/5/1991 directing that petitioner be reinstated in service treating him under suspension as he was immediately prior to his dismissal. During the period of suspension, his headquarter was fixed at Bikaner and it was directed that he would receive the amount of subsistence allowance for the intervening period. Consequently, petitioner was reinstated in service vide order dated 3/6/1991 but he was treated under suspension. Aggrieved thereby, petitioner has preferred this writ petition. 3) Shri Babu Lal Gupta, learned counsel for the petitioner has argued that when petitioner was placed under suspension in contemplatation of the departmental enquiry. After completion of enquiry when he was dismissed, the order of his suspension SBCWP No.3842/2002. 3 was merged into dismissal order. Once dismissal order is set-aside, suspension order itself also stands obliterated and the same consequences follow from refusal to approve dismissal. Refusal to approve and for that matter, setting aside of the dismissal order by itself would not revive the suspension order. It was argued that criminal case was also registered against the petitioner for the very same incident under Sections 279, 337, 338 and 304A IPC. Learned Additional Chief Judicial Magistrate convicted the petitioner for the aforesaid offences vide judgment dated 26/8/1995. However appeal was filed by the petitioner before the learned Additional Sessions Judge, Sri Ganganagar, who vide its order dated 16/6/1998 set-aside the aforesaid judgment of conviction and sentence and acquitted the petitioner of all the charges. Petitioner submitted representation to the Personal Officer as well as Managing Director of the respondent-Corporation requesting that order of his suspension be revoked and he should be paid all the arrears and benefits of pay fixation as per revised pay scale rules with annual grade increments for the intervening period. When nothing was done, he was forced to file the present writ petition. 4) Shri Babu Lal Gupta, learned counsel for the petitioner in support of his arguments has relied on SBCWP No.3842/2002. 4 the Constitution Bench judgment of Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Shri Ram Gopal Sharma and others : (2002) 2 SCC 244 and argued that the Supreme Court in that judgment held that consequent upon refusal of approval of removal, the delinquent would be treated to be continuous in service as if order of discharge or dismissal was never passed. Similarly, Supreme Court in T.N. State Transport Corporation Vs. Neethivilangan, Kumbakonam : {(2001) 9 SCC 99} held that when application for approval of dismissal is rejected on merits, the dismissal order becomes non-est and employer is bound to treat such employee continued in service with the right to all consequential benefits. The employee in such circumstances, can avail of remedy under Article 226 of the Constitution of India and need not raise an indsutrial dispute for that purpose. Learned counsel also cited the judgment of Calcutta High Court to the same effect in B.Yellappa Vs. Steel Authority of India Ltd. & Ors. : {2004(1) S.L.R. 228}. 5) Per contra, Shri Mukesh Kumar Verma, learned counsel appearing for the respondent-R.S.R.T.C. opposed the writ petition and submitted that if any application for approval has been rejected by the Labour Court, it would merely result in restoration of that status of the workman which he was holding SBCWP No.3842/2002. 5 immediately before the date of his dismissal. In the present case, petitioner was suspended vide order dated 12/12/1987 and was though reinstated but he was rightly treated continuing under suspension. At the same time however, when he was convicted on 26/8/1995 for offences under Sections 279, 337, 338 and 304A IPC by the judgment of the learned A.C.J.M. Sri Ganganagar. It was therefore that he could not in any case be reinstated because he was convicted. Subsequently, when his appeal was accepted by the learned Additional Sessions Judge, Sri Ganganagar vide order dated 16/6/1998 and he was acquitted, respondents vide order dated 31/12/1998 reinstated the petitioner pending enquiry. There was thus no illegality in the course adopted by the respondents. Learned counsel for the repondents in support of his arguments cited the judgment of Andhra Pradesh High Court in Managing Director, State Bank of Hyderabad, Hyderabad and another Vs. P.Kata Rao {2007(5) L.L.N.S. (NOC) No.200} and the judgment of Bombay High Court in Air India Ltd. Vs. V.M. Mhadgut and another : {2007(3) L.N.N. 213}. 6) I have given my anxious consideration to the arguments aforesaid and perused the material on record. 7) Approval of removal was declined by the learned Industrial Tribunal under its order dated SBCWP No.3842/2002. 6 4/4/1991 precisely for the reason that the management passed the removal order on 8/2/1989 and filed an application under Section 33(2)(b) on 9/2/1989 with which it deposited a demand draft of Rs.1373/- in lieu of notice pay of one month. It was held that calculation of the aforesaid notice pay was made by adding only 13% dearness allowance on the basic pay of Rs.1140.50 whereas at the relevant time, the workman was liable to receive 23% dearness allowance. The workman was thus not paid complete one month's notice pay. While the application seeking approval was rejected by the Tribunal on 4/4/1991, the workman was convicted by the learned A.C.J.M. Sri Ganganagar vide its judgment dated 26/8/1995 for the aforesaid offences and subsequently he was acquitted by the learned Additional Sessions Judge Sri Ganganagar on 16/6/1998. But then, what is to be examined is whether as a result of refusal to grant approval, the order of not only removal but also the suspension would stand obliterated and petitioner would be automatically deemed to have been reinstated in service. Normally, the consequence of refusal for granting apporval of removal or dismissal under Section 33(2)(b) of the Act as enunciated by the judgment of Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. supra is that the the employee continues to be in service as if order of dismissal SBCWP No.3842/2002. 7 or removal was never passed. It was held that the order of refusal to grant approval of removal or dismissal renders void inoperative. Consequence of order of discharge/removal being treated as inoperative would obviously be reinstatement of the workman or deemed reinstatement. He has to be therefore treated continuing in service with all consequential benefits. But then, here in the present case, the order of removal was set-aside only for the defect on the part of the management in not paying complete notice pay and nothing was said about the validity of departmental enquiry proceedings as such. Undisputably, petitioner at the time of passing of the order of removal was under suspension pursuant to the order dated 12/12/1987. The respondents vide order dated 3/6/1991 though reinstated the petitioner in service but directed that he shall be deemed to continue in service as suspended from the date of discharge and that he shall be paid subsistence allowance in terms of the order dated 13/11/1986. Respondents in the order of reinstatement have treated the petitioner under deemed suspension because he was under suspension immediately before the date of his removal. Moreover, petitioner at that time was facing criminal trial in Criminal Case No.39/1988 for offences under Sections 279, 337, 338 and 304A IPC in the court of learned A.C.J.M. Sri SBCWP No.3842/2002. 8 Ganganagar who vide its order dated 26/8/1985 finally convicted him. That provided to the respondents an additional reason to treat him continuing under suspension. Admittedly, when petitioner was acquitted by the judgment of learned Additional Sessions Judge, Sri Ganganagar on 16/6/1998, he was reinstated vide order dated 31/12/1998. 8) Although there can be no quarrel with the proposition of law that consequence of refusal by the Tribunal to grant approval of removal/dismissal would be that workman shall be deemed to be continuous in service and the order of removal would be treated as non-est. But then reinstatement only signifies the restoration of the employee in the same old position in which he was when he was removed, reviving the relationship of master and servant. In normal law of service jurisprudence, if the employee was facing departmental enquiry and was under suspension and the order of remvoal passed thereupon is set-aside for certain technical reason – such as non-payment of correct amuont of notice pay, employwer would always be at liberty to treat such employee under suspension as before and here in the present case, when petitioner was also facing criminal trial, he could not be straightway deemed to have been reinstated in service. Subsequently, when petitioner was acquitted by the learned Additional SBCWP No.3842/2002. 9 Sessions Judge, Sri Ganganagar vide order dated 16/6/1998, respondents themselves reinstated him in service vide their order dated 31/12/1998. In view of above discussion, I do not find any merit in this writ petition, which is dismissed. (MOHAMMAD RAFIQ), J. anil