1 S.B. Civil Writ Petition No. 528/1998 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S. B. Civil Writ Petition No. 528/1998 The Divisional Manager, Rajasthan State Road Transport Corporation, Udaipur Versus Sh. Majeed Khan Pathani & Another. Date of Order: 02.12.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. M.K. Verma, for the petitioner. BY THE COURT: Heard learned counsel for the petitioner. 2. Briefly stated the facts of writ petition are that workman/Respondent No. 1 Shri Majeed Khan Pathani filed an application under Section 33-A of the Industrial Disputes Act, 1947(hereinafter referred to as 'the Act') before Industrial Tribunal, Rajasthan, Jaipur (for short 'learned Tribunal') with a prayer that he may be reinstated on the post of Conductor with back wages and all other consequential benefits. It was pleaded in the application that while workman was performing his duty as Conductor on 04.04.1987, some persons stating themselves to be Inspectors of 2 S.B. Civil Writ Petition No. 528/1998 Roadways Department met him and without checking the vehicle, they put a note on his way bill that eight passengers were found without tickets. Duty Officer deleted his name from duty chart and terminated his services. Workman further pleaded that he had not committed any misconduct and was holding the post of permanent conductor on the basis of selection conducted by Departmental Selection Committee. His services have been terminated on false complaint. Neither statements of eight passengers were recorded, nor their addresses had been mentioned. Workman was working on the post of Conductor since 15.05.1986, therefore, his termination order may be declared as illegal and void. 3. Petitioner/employer filed written reply before learned Tribunal wherein it was pleaded that vehicle of the petitioner was checked by Duty Inspectors and eight passengers were found without tickets. However, in para 4 of the reply, it was stated that workman was not terminated because of above mentioned misconduct, but his services were terminated vide order dated 08.04.1987 on the ground that Workman was only a daily wage employee and his services were not required. It was also pleaded 3 S.B. Civil Writ Petition No. 528/1998 that the services of the workman were not terminated as per Standing Order 13, but his services were terminated as per service conditions, therefore, the workman is not entitled to any relief. 4. Learned Tribunal vide impugned award dated 11.04.1996 came to a conclusion that termination order of workman dated 08.04.1987 was legal and valid and workman is not entitled for reinstatement, but looking to the facts and legal position, the workman is entitled for arrears of salary from the date of termination till date of passing of award. 5. Feeling aggrieved with the part of aforesaid award, with regard to payment of back wages, the petitioner has preferred this writ petition. 6. This court while admitting the writ petition on 06.05.1998 stayed operation of impugned award dated 11.04.1996, which was confirmed after service of notice on respondent No. 1 vide order dated 29.07.1999. 7. Submission of learned counsel for the petitioner is that since learned Tribunal came 4 S.B. Civil Writ Petition No. 528/1998 to a conclusion that termination order of workman was valid and legal, therefore, workman was not entitled for any wages for the period after the date of termination order, therefore, learned Tribunal committed an illegality in awarding the back wages for the period i.e. from the date of termination order till date of passing of award by learned Tribunal. 8. In support of his submission, learned counsel for the petitioner has referred judgment dated 07.07.1997 passed by this Court in S. B. Civil Writ Petition No. 6485/1992 titled RSRTC Vs The Judge Industrial Tribunal, Jaipur & Another alongwith other connected writ petitions and R. Thiruvirkolam V. The Presiding Officer & Anr., reported in 1997 Vol. 1 Current Labour Reports Page 1(SC). 9. No one is present on behalf of respondent/workman despite service of notice upon him. 10. I have considered the submission of learned counsel for the petitioner. 11. The point involved in the present writ petition for decision is, “whether the order of 5 S.B. Civil Writ Petition No. 528/1998 punishment/termination will operate from its date or from the date of adjudication/award passed by the Industrial Tribunal.” 12. So far as facts of the present case are concerned, the same are not in dispute. Workman/Respondent No. 1 was appointed as Conductor vide order dated 06.03.1986(Annexure- 5) on daily wage. His vehicle was checked by Sub-Inspectors of Roadways Department on 04.04.1987 and eight passengers were found travelling without tickets and a note in this regard was put on the way bill. Services of the workman came to be terminated vide order dated 08.04.1987 with immediate effect(Annexure-7). 13. This Court, while deciding number of writ petitions, vide order dated 07.07.1997 (supra) considered the controversy involved in the present case in detail and held “that order of punishment in all cases will operate from the date it was made by the employer and not from the date of adjudication/award of the Labour Court/Industrial Tribunal.” 14. Hon'ble Apex court in R. Thiruvikolam (supra) considered the similar point and after examining/considering various judgments of Apex 6 S.B. Civil Writ Petition No. 528/1998 Court including Constitution Bench Judgment of Hon'ble Supreme Court in the case of P.H. Kalyani Vs. M/s. Air France, Calcutta, reported in 1964 (2) SCR 104 held that order of dismissal will operate from the date of dismissal of the workman by the employer and not from the date of Labour Court's award. Para 11 and 12 of the judgment(supra) are reproduced as under: “11. We may now refer to later decisions of this Court in Desh Raj Gupta V. Industrial Tribunal IV, U.P. Lucknow & Anr. 1990 Supp.(1) SCR 411 and Rambahu Vyakuji Kheragade V. Maharashtra Road Transport Corporation, 1995 Supp. (4) SCC 157. In Rambahu, Kalyani and D.C. Roy, were followed by a two-Judge Bench and similar view was taken that the order of dismissal takes effect from the date on which it was originally passed and not from the date of the Labour Court's award when the Labour Court, after holding the domestic inquiry to be defective reaches the conclusion on the evidence adduced before it that the punishment awarded was justified. However, in Desh Raj Gupta, the observations in Gujarat Steel, were relied on for taking a different view without any reference to either Kalyani or D.C. Roy, which appear to have been overlooked. In these circumstances the decision in Desh Raj Gupta, cannot be treated as an authority on the point. Both these decisions were by two-Judge Bench. 12. As a result of the aforesaid decision it must be held that the only point involved for decision in the appeal is concluded against the appellant by the Constitution Bench decision of this Court in Kalyani, and the observations to the contrary in Gujarat Steel, are, 7 S.B. Civil Writ Petition No. 528/1998 therefore, per incuriam and not binding. The order of punishment in the present case operated from November 18, 1981 when it was made by the employer and not from December 11, 1985, the date of Labour Court's award. The appellant is, therefore, not entitled to any relief.” 15. The point involved in the present case has already been examined by this Court as well as Hon'ble Apex court in the judgments referred above, therefore, present case is fully covered by above-referred two judgments and it is held that order of termination of Respondent No. 1/Workman will relate back to the date of order of termination i.e. 08.04.1987 and he will not be entitled for any arrears of wages from the date of termination till date of award i.e. 11.04.1996 as held by learned Tribunal. 16. In view of above discussions, writ petition is allowed. Impugned award dated 11.04.1996(Annexure-8) passed by Industrial Tribunal, Jaipur is modified to above extent. 17. Since no one is present on behalf of the respondents, therefore, there will be no order as to costs. (Narendra Kumar Jain),J. Manoj, Item No.8.