CWP 2121/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.2121/2006 Manager, RSRTC, Tonk Versus Mohd. Hussain & Ors. Date of Order ::: 05/02/09 Hon'ble Mr. Justice Ajay Rastogi Mr. JM Saxena, for petitioner-RSRTC Mr. Shyam Lal for Mr. MF Beg for respondent workman Instant petition has been filed by Raj. State Road Transport Corporation (“RSRTC”) assailing Award dt.29/04/05 (Ann.5) in LCR-585/98 passed by Labour Court, Jaipur on the premise that person having attained age of superannuation on 31/12/1994 can be reinstated in service entitling for service benefits upon superannuation. Respondent-workman joined service as Driver with the RSRTC on 16/01/1978 and because of low eye vision was considered to be medically unfit for the post; as a consequence whereof was discharged from service vide order dt.14/03/91 while awarding compensation duly paid to him. Initially respondent workman filed application (IT-Complaint 2/92) U/s 33A of Industrial Disputes Act, 1947 (“the Act”) before Industrial Tribunal, Jaipur (“the Tribunal”) on the premise that since dispute was pending adjudication, his services could not have been dispensed with without seeking prior permission U/s 33(2)(b) of the Act – in CWP 2121/06 //2// absence whereof, very action of termination of his services is bad in law. However, learned Tribunal rejected workman's application U/s 33A of the Act vide Award dt.16/04/94 holding that since termination was not on the ground of misconduct, in the facts of the case, there was no requirement for Corporation to file application U/s 33(2)(b) of the Act and in absence whereof, application of workman U/s 33A of the Act is not maintainable. Respondent workman raised his grievance and finally Reference was made by appropriate Government vide notification No.1(1)648/Lab.Dep/ 97. It is relevant to mention that much before reference came for adjudication, the workman attained age of superannuation on 31/12/94. However, Labour Court after appreciation of material on record finally set aside order of termination of respondent workman and directed to treat him in service holding him to be entitled for benefits accrued upon his superannuation for his total service rendered. Counsel for petitioner submits that before passing the order terminating services of respondent-workman, adequate steps were taken for consideration of his alternative employment and since it could not be finally resorted to, he was adequately compensated and their action was CWP 2121/06 //3// completely in consonance with the judgment of Apex Court in Anand Bihari Vs. RSRTC (1991(1) SCC 731), without taking note whereof, learned Labour Court committed serious error of law in quashing the termination impugned with further direction to treat respondent-workman in service with consequential benefits flowing therefrom. While supporting the finding recorded by Labour Court, Counsel for respondent workman submits that once action of petitioner (RSRTC) was bad in law, he was entitled to get benefits till attaining age of superannuation and there was no error being committed by Labour Court which may call for interference. Respondent workman as per material came on record was in service of petitioner Corporation prior to passing of order of termination dt. 14/03/91, because of medical unfitness due to low eye-vision, he was discharged from service while making payment of compensation. Even asper judgment of Apex Court in Anand Behari Vs. RSRTC (supra), there are two alternatives available either for providing alternative jobs alongwith retirement benefits or payment of additional compensation proportionate to the length of service rendered in case of non-availability of alternative jobs. However, looking to his left out CWP 2121/06 //4// service available of respondent workman and taking note of the fact that he was made entitled for all benefits which were entitled to get of services rendered; and that apart, his services as Driver were discharged on account of his low-vision – as a result whereof, an alternative employment was not considered to be proper but to pay adequate compensation in lieu of employment. This material on record has not been properly appreciated by Labour Court – in view of whereof, the finding recorded under Award impugned, is not duly supported by material on record and deserves to be set aside. Counsel for respondent-workman further submits that even benefits, to which the workman was entitled for under law for his services rendered, have not been paid to him. Consequently, writ petition succeeds and is hereby allowed. Award dt.29/04/05 (Ann.5) is hereby quashed & set aside. However, legitimate dues and benefits for the services rendered by workman, if not paid as yet, it is expected from the Corporation to pay the same expeditiously. No order as to costs. (Ajay Rastogi), J. K.Khatri/p4/2121CW06-5Fb-ID.doc