CW 11227/09 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.11227/09 Chief Manager, RSRTC Versus Gopal Singh [since deceased] & Ors. DATE OF ORDER : 09/10/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Mukesh Kumar Verma, for petitioner *** Instant petition has been filed by Corporation assailing order dt.18th December, 2007 whereby domestic inquiry was declared to be unfair and parties were permitted to lead evidence before Tribunal but since the workman died during pendency of the proceedings after passing of order dt.18th December, 2007 and it was not possible now to hold inquiry on account of change in circumstances rejected application filed by Corporation u/s.33(2)(b) of the Act, 1947 vide order dt.26th February, 2008 [Ann.3]. The deceased workman, Gopal Singh was working as Conductor in the services of the Corporation. However, he was served with two charge sheets dt.20th January, 1994 & 26th May, 1995. While in relation to first charge sheet dt.20th January, CW 11227/09 [2] 1994, the respondent was summoned to appear on 11th January, 1995 and at that stage, he submitted application seeking exemption. However, on the next date of hearing, the inquiry was fixed on 24th January, 1995 for which there was no notice served upon him. But, it appears from the record, particularly, from the order impugned inflicting penalty upon him dt.16th October, 2001 that some publication was made in May, 1995. But, no documentary evidence in support thereof, is available on record in relation to first inquiry which remained ex-parte and he was held to be guilty. So far as second charge sheet served upon him dt.26th May, 1995 is concerned, it appears from the order Ann.1 dt.16th October, 2001 that at one stage evidence of witnesses was recorded behind the back of deceased delinquent. But, on his request, the matter was remitted back to the Inquiry Officer and after the matter was remitted, no notice was served upon deceased delinquent and as such, inquiry remained ex-parte and after being held guilty in both the charge sheets, finally punished with the penalty of removal from service. At this stage, application was filed u/s.33(2)(b) of the Act and the learned Industrial Tribunal taking note of the fact that CW 11227/09 [3] both the two charge sheets, of which reference has been made supra in its order dt.18th December, 2007 held that domestic inquiry initiated against the delinquent deceased was not fair and permission was granted to the parties to lead evidence. After passing of order granting permission to the parties to lead their evidence the workman died during pendency and since it was not possible to provide any opportunity on account of change in circumstances, learned Tribunal finally rejected their application vide order Ann.3 dt.26th February, 2008. Counsel for petitioner submits that ample opportunity was offered to the deceased delinquent, of which reference has been made in detail in the order of penalty inflicted upon him dt.16th October, 2001, but the same has not been properly appreciated and considered by the Tribunal while passing order impugned dt.18th December, 2007, whereas finding has been recorded holding the domestic inquiry to be unfair. Counsel further submits that the Tribunal was expected to examine the record of inquiry while CW 11227/09 [4] passing final order on their application u/s.33 (2)(b) of the Act and rejecting their application vide order impugned dt.26th February, 2008 is also perverse and is not legally sustainable. In opinion of this court, the submission made by Counsel is without merit for the reason that the learned Tribunal has recorded a finding of fact in regard to both the inquiries/charge sheets initiated against the delinquent dt.20th January, 1994 & 26th May, 1995 and no material has been placed on record by which this court can infer that after inquiry was deferred, the delinquent was never informed about the date of inquiry which was fixed on 24th January, 1995 and so far as reference which has been made in the order of penalty inflicted upon the delinquent dt.16th October, 2001 is concerned, a reference has been made that some publication was made in newspaper on 3rd May, 1995, but no material before the Tribunal was placed on record to substantiate the same. Even otherwise, the domestic inquiry was initiated in the ordinary course it was expected from the Inquiry Officer to serve him notice and it is not the case of the petitioner that despite several notices served, when the CW 11227/09 [5] delinquent has failed to appear, alternative mode was adopted by publishing notice in newspaper and that too he has failed to response. So far as first charge sheet is concerned, for all practical purposes it remained ex-parte. So far as second inquiry initiated against delinquent vide charge sheet dt.26th May, 1995 since certain statements were recorded and the delinquent raised objection, the matter was remitted back to the Inquiry Officer, but no material has been placed on record to show that after it was remitted to the Inquiry Officer, notice was ever issued to the delinquent about the domestic inquiry initiated against him. Thus, infact both the inquiries initiated against delinquent remained ex-parte in which he was held to be guilty and punished with the penalty of removal from service vide order Ann.1 dt.16th October, 2001. Thus, this court does not find any perversity in the order dt.18th December, 2007 in which the finding has been recorded by the Tribunal for holding domestic inquiry in relation to both the charge sheets remained unfair. CW 11227/09 [6] After the matter was remitted, the opportunity was granted to the parties to lead evidence, but unfortunately when workman died during pendency certainly opportunity on account of change in circumstances could not have been afforded to the deceased delinquent to defend and in such circumstances, the Tribunal considered appropriate to reject the application filed by the Corporation u/s.33(2)(b) of the Act vide order dt.26th February, 2008. Taking note of totality of the matter, this court also considered that in passing of order the Tribunal has made substantial justice with the legal heirs of deceased employee of the Corporation. Taking note thereof, this Court does not find any substance to interfere in the instant petition, the stands dismissed. [AJAY RASTOGI], J. FRBOHRA11227CW09 9-10.doc