SBCWP6573/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.6573/1997 Teja Ram Choudhary Vs. The Judge, Industrial Tribunal, Jaipur and Others Date of Order ::: 05.03.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Vigyan Shah for Shri Mahendra Shah, Counsel for petitioner Shri Mukesh Verma, Counsel for respondents #### By the Court:- Heard learned counsel for parties. This writ petition was filed by petitioner challenging impugned order dated 12.11.1997 by which application filed by respondent Rajasthan State Road Transport Corporation (for short, 'RSRTC') for seeking approval of removal of petitioner under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short, the ID Act') has been allowed, and order dated 27.07.1991 by which disciplinary authority passed order of his removal. As evident from the background facts, removal of petitioner originally was not approved by the Industrial Tribunal by its order dated 24.12.1991 and resultantly SBCWP6573/1997 // 2 // petitioner had to be reinstated back in service but respondent RSRTC separately challenged this order of Industrial Tribunal by filing writ petition No.257/1993. The writ petition was allowed by judgment of this Court dated 23.08.1996 with liberty to respondent RSRTC to produce relevant documents before the Industrial Tribunal within a period of two months from the date of judgment and the matter was remanded back to the Tribunal for its consideration afresh and pass a fresh order. It was thereafter the Industrial Tribunal, Jaipur, vide its order dated 12.11.1997 allowed application filed by respondent RSRTC approving removal of respondent-workman. Shri Vigyan Shah, learned counsel for petitioner, has argued that the Industrial Tribunal in passing impugned order of approval has proceeded on surmises and conjectures. There was absolutely no justification for the observations made in Para 20 that earlier removal of petitioner was a dismissal covered in Clause 36(8) of the Standing Order, thus rendering him ineligible for future employment and that the petitioner secured employment by concealing such facts. Learned counsel cited the order dated SBCWP6573/1997 // 3 // 04.09.1982 by which he was earlier removed by Depot Manager, Ajmer of respondent RSRTC, showing that he was working on daily wage basis and it was an order of termination simplicitor. The order was not stigmatic and alleged misconduct of petitioner was not a foundation of that order. Learned counsel therefore submitted that impugned order granting approval deserves to be set-aside. It was argued that for removal made on 27.07.1991 application seeking approval was filed belatedly on 09.08.1997. Learned counsel submitted that there was no justification for the Industrial Tribunal to take a different view than the one which was expressed by it in its earlier order. Even though this Court remanded the matter to the Industrial Tribunal with observation that respondent RSRTC would be at liberty to file fresh evidence in order to show that earlier order of removal of petitioner was passed after full-fledged enquiry attracting Clause 36(8) of the Standing Order, but no fresh evidence or document was ever filed and the matter was decided afresh on the basis of same material which was available before the Industrial Tribunal. Learned counsel for petitioner further SBCWP6573/1997 // 4 // submitted that learned Industrial Tribunal has failed to appreciate that enquiry officer has exonerated the petitioner of all the charges. The disciplinary authority even though took a different view than that of the enquiry officer but did not serve upon the petitioner a notice of disagreement nor independently recorded any reason of disagreement in his order. Shri Mukesh Verma, learned counsel for respondents, has opposed writ petition and submitted that application under Section 33(2) (b) of the ID Act was sent to the Tribunal on the same day by registered post when the order of removal was passed on 27.07.1991 and it was entered in the records of the Tribunal on 30.07.1991. Settled proposition of law is that application need not to be filed on the same day and if it is shown from the conduct of the parties that it was simultaneously sent or effort was made to file it on earliest available opportunity so as to show that all such events were part of the same transaction, it would be taken as sufficient compliance of Proviso to Section 33(2)(b) of the ID Act. Learned counsel submitted that the Industrial Tribunal was justified in holding that earlier dismissal of petitioner was not a simplicitor SBCWP6573/1997 // 5 // termination and therefore the case of petitioner falls within Clause 36 (8) of the Standing Order.33(2)(b) as it was a simplicitor termination. Upon hearing learned counsel for parties and perusing material on record, I find that the fact that order which the respondent RSRTC passed terminating the petitioner on earlier occasion from Ajmer Depot was an order of removal simplicitor. It is not described as an order of dismissal. Clause 36(8), as mentioned in the Standing Order of 1965, is specific that the order of dismissal from service shall be disqualification of service in future. This order which is there on the record does not show that it was an order of dismissal, rather it was described as order of removal. No explanation has been given by respondent RSRTC as to if the disciplinary authority wanted to differ with the view taken by enquiry officer, why he did not serve upon petitioner a notice of disagreement with reasons of such disagreement. Moreover, no such reason of disagreement has been even recorded by him in the impugned order of removal dated 27.07.1991. Despite the fact that this Court granted opportunity to respondent RSRTC to prove before SBCWP6573/1997 // 6 // the Labour Court that earlier termination of petitioner was not an order of termination simplicitor but was an order of dismissal, the respondents failed to produce any evidence to the effect despite remand of the matter. When pointedly asked, learned counsel for petitioner submitted that petitioner, when he was lastly working with respondent RSRTC, was appointed on regular basis and was receiving his salary/emoluments in regular pay scale. However, it is informed that the petitioner has expired in the year 2003 i.e. four years after filing of the present writ petition. Even if, the petitioner expired during pendency of writ petition, his widow/legal representatives would be entitled to received consequential benefits. In the result, this writ petition is allowed. The orders dated 12.11.1997, 27.07.1991 and 27.12.1997 are quashed and set- aside. The widow/legal representatives of petitioner would be entitled to receive all consequential benefits flowing therefrom. (Mohammad Rafiq) J. //Jaiman//