CW 442/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.442/2006 Chief Manager, RSRTC Versus Gopal Sharma & Anr. Date of Order ::: 17/12/08 Hon'ble Mr. Justice Ajay Rastogi Mr. JM Saxena, for petitioner (RSRTC) Mr. Babulal Gupta, for respondent workman Instant petition has been filed by Rajasthan State Road Transport Corporation (“RSRTC”/Employer) assailing order dt.25/10/05 (Ann.9) passed by Industrial Tribunal, Jaipur, rejecting application (IT No.92/86) U/S 33(2)(b) of Industrial Disputes Act, 1947 (“the Act”). Respondent workman while working as Conductor was served with charge sheet alongwith memo dt.23/05/95 (Ann.1), wherein after holding regular inquiry, inquiry officer found charges partly proved against the workman; and after inquiry report was received by disciplinary authority, delinquent (workman) was served with notice dt.12/09/97 (Ann.3) & publication dt. 07/09/97 (Ann.4) for his personal appearance. However, delinquent as alleged did not appear even after service of the notices. Ultimately, after examining material on record of inquiry, disciplinary authority had disagreed with finding recorded by inquiring authority and CW 442/06 //2// while holding workman guilty, inflicted penalty of dismissal from service and so also withheld salary other than subsistence allowance paid during suspension period, vide order dt.14/10/97 (Ann.6). It appears that because of pendency of some industrial dispute before the Tribunal, application was filed by RSRTC seeking approval of their action of imposing penalty inflicted against workman U/S 33(2)(B) of the Act. After taking note of record of inquiry and hearing the parties, vide order dt.25/10/05 (Ann.9) the learned tribunal observed that before recording finding of guilt against delinquent and so also while recording of finding of disagreement with the report of inquiring authority, note of disagreement ought to have been served with notice upon delinquent – in absence whereof, order of holding delinquent guilty and inflicting penalty of dismissal from service being in violation of principles of natural justice, is not legally sustainable and accordingly declined to approve their action. Hence this petition. Counsel for petitioner submits that after inquiry report was received by disciplinary authority, ample opportunity was CW 442/06 //3// forwarded to delinquent workman for his personal appearance but despite notices being served, he failed to appear; as such disciplinary authority after taking note of material including recording of inquiry found charges proved against delinquent and accordingly inflicted penalty of dismissal from service vide order dt. 14/10/1997 but it has been over-looked into by learned Tribunal about the fact of ample opportunity being afforded before recording finding of guilt and infliction of penalty of dismissal from service; in such circumstances very finding recorded by learned Tribunal in its order of holding their action being violative of principles of natural justice, is not legally sustainable. Counsel for workman while supporting order of the Tribunal submits that inquiry officer found charges partly proved and if at all disciplinary authority had disagreed with the finding recorded by inquiring authority, disciplinary authority was under obligation to serve upon him a Note of disagreement alongwith notice, in absence whereof, very action of employer (RSRTC) was in violation of principles of natural justice; as such order of the learned Tribunal does not call for interference, In CW 442/06 //4// support, Counsel placed reliance upon decision of this Court in RSRTC Vs. Dilip Singh (2008(UC) WLC 694). I have considered contentions of Counsel for both the parties and with their assistance, pondered over material on record. Facts almost are not in dispute that after inquiry officer recorded finding of charges being partly proved against delinquent, notice was served – pursuant to which, any how, delinquent failed to appear but the fact remains that after notice alleged to have been served upon delinquent, Note of dis-agreement of disciplinary authority, if any, was never served upon or communicated to the delinquent alongwith notice served for putting personal appearance, in absence whereof, even if the workman failed to appear even as alleged by RSRTC (employer), disciplinary authority could have acted upon record of inquiry and if it disagreed with finding recorded by inquiring authority in its report holding delinquent guilty, petitioner employer was under obligation to serve a Note of disagreement as well alongwith notice alleged served upon him for personal appearance, in absence whereof, action of RSRTC in holding delinquent guilty and inflicting penalty of dismissal from service can CW 442/06 //5// not be said to be legally sustainable as has been observed by this Court in RSRTC Vs. Dilip Singh (supra) and so also by Apex Court in Punjab National Bank Vs. Kunj Behari Mishra (1998(7) SCC 84) ad infra: “19.The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” CW 442/06 //6// Learned Tribunal in its order impugned has recorded a finding that in absence of Note of disagreement being served upon delinquent alongwith notice of personal appearance, action of petitioner (RSRTC) in holding delinquent guilty and inflicting penalty of dismissal from service is not legally sustainable. This court does not find any manifest error of law in the order of tribunal, as a consequence whereof, application U/s 33(2)(b) of the Act was rightly rejected vide order impugned which does not call for interference. Consequently, writ petition fails and is hereby dismissed alongwith stay application. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.6/442CW06-1712-ID.doc