1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.1112/1995. : : Divisional Manager, RSRTC, Jaipur. Vs. General Secretary, Transport Workers Union & Anr. : : Date of Order 24.3.2009 HON'BLE MR.JUSTI CE MOHAMMAD RAFI Q Mr. Mukesh Kumar for the petitioner. Mr. Ashok Mishra for the respondent. Heard learned counsel for the parties. 2. This writ petition has been filed by Rajasthan State Road Transport Corporation, Jaipur against the award dated 9.12.1993 passed by Labour Court, Jaipur by which the Labour Court while answering reference regarding validity of removal of respondent-workman held that his removal was illegal and, therefore, he would be entitled to reinstatement in service with 50% back wages. 3. Shri Mukesh Kumar, learned counsel for the petitioner argued that Labour Court has erred in law in setting aside the order of removal on the premise that 2 petitioner could not again proceed against the respondent- Shri Kishna Ram, who was a bus conductor, on allegation of carrying ten passengers without ticket as they had condoned his misconduct by charging penalty as well as full fare for the entire route from him in terms of their own circular dated 24.7.1982. Learned counsel submitted that this circular was not meant to condone the misconduct. This circular merely provided a uniform method of charging fare as well as amount of penalty both from passengers as well as conductor. It was argued that if the Inspecting Party found that conductor had not realized the fare from the passengers, the entire fare for full route wherefrom the bus originated was liable to be charged from the passengers apart from the penalty. If it was proved that conductor had already realized the fare, he would be liable to pay the amount of fare together with penalty. But this circular could not be construed to mean as a disciplinary action against the respondent-workman so as to attract the principle of double jeopardy. Learned counsel submitted that Labour Court allowed the petitioner to adduce evidence before itself by holding enquiry in the Court. Even though evidence was adduced by both the parties before the Labour Court, but eventually the Labour Court held that since removal of the 3 respondent was hit by doctrine of double jeopardy, no direction for holding such enquiry before the Court itself could even be passed. Leaned counsel has produced an affidavit to show that subsequently when respondent- workman was reinstated in service by petitioner in the year 2001 after an order was passed by this Court in an application filed by the respondent-workman under Section 17-B of the Industrial Disputes Act, the respondent-workman again found indulgening in similar misconduct of carrying passengers without ticket on as many as eleven occasions and each time he admitted his guilt and penalties were imposed. Learned Labour Court has not examined all this evidence and proceeded to decide the matter on an entirely wrong basis. Complete facts of the case ought to have been looked into. Respondent was rightly removed because he was appointed as a bus conductor in place of suspended conductor and was not regularly recruited. 4. Shri Ashok Mishra, learned counsel for the respondent-workman opposed the writ petition and submitted that Labour Court has discussed the law on the principle of double jeopardy in fairly details. It was argued that petitioner by its own circular dated 24.7.1982 has 4 provided the manner in which cases of passengers without ticket would be dealt with. Once the amount of penalty was realised from the respondent-workman apart from fare of the entire route, his misconduct, even if there was any, stood condoned. Allowing the Management again to initiate departmental action against respondent-workman would be hit by principles of double jeopardy. Learned counsel cited the judgment of this Court in RSRTC Vs. Judge, Industrial Tribunal, Rajasthan & Ors. : 2008 (3) CDR, 2065 and submitted that this Court in the aforesaid case taking into aforesaid circular issued by Management where they decided to condone the misconduct by charging fine higher from awarding penalty of stoppage of one grade increment with cumulative effect, did not interfere with the award directing reinstatement. It was submitted that now when respondent- workman has already been reinstated in service on 1.8.2003, no interference ought to be made by this Court with the award of the Labour Court directing reinstatement with continuity in service. The writ petition be, therefore, dismissed. 5. Having heard learned counsel for the parties and perused the material on record, I find that the Labour Court 5 allowed the Management to hold disciplinary enquiry against respondent-workman and allowed both the parties to adduce evidence. Evidence was actually adduced singularly on the aspect of double jeopardy in the context of circular issued by Management on 24.7.1982. In fact, the Labour Court in the concluding part of award has observed in no certain terms that in view of penalty which was already been imposed on the respondent-workman, the Management could not again hold disciplinary proceedings against him. There was no evidence led before the Labour Court by either of the parties that cases in which circular dated 24.7.1982 was invoked, no separate disciplinary action was taken against the conductors found carrying passengers without ticket and that the Management by its conduct was condoning misconduct of all the conductors of that time by just charging the amount of penalty. In fact, when the reference was made at the instance of workman, it was required of him to have laid factual foundation even the aspect of double jeopardy. Although, at the same time, it is also true that Management in the present case has also utterly failed to specifically prove before the Labour Court that it used to take disciplinary action against the conductors even when penalty was realized from them for their misconduct of carrying 6 passengers without ticket. The judgment on which reliance is placed by learned counsel for the respondent-workman is distinguishable because in that judgment, the workman was reinstated and there was a categorical finding by Labour Court that no previous misconduct was proved and that respondent found issuing tickets to passengers and that after his reinstatement also he had served Management for four years and no adversity was found against him. It was on those fact that this Court while referring to the policy circulars issued by Management for charging fine and awarding penalty of stopping one grade increment without cumulative effect as a major penalty. In those facts, this Court did not deem it appropriate to interfere with the award, but that judgment turned out on its own facts on the basis of various policy circulars issued by Management where they decided to award penalty as fine and stoppage of one grade increment as a punishment in lieu of disciplinary action. From the language of the circular dated 24.7.1982 no such interpretation is forthcoming. 6. Having regard to the facts of the case, I therefore deem it appropriate to remand this case to the Labour Court, Jaipur for deciding it fresh in the light of discussions made 7 above with liberty to both the parties to produce evidence to show that Management at the relevant time had the practice of condoning misconduct of conductors found carrying passengers without ticket and once the penalty was realised in terms of Circular dated 24.7.1982 no separate disciplinary action was taken against them. Labour Court also after this additional finding is recorded may decide the matter afresh taking into consideration evidence recorded in past and also newly recorded evidence in accordance with law. This writ petition is accordingly allowed in part. (MOHAMMAD RAFI Q)J. A.Arora/ - Item No.H/ 4.