1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.3827/1995. : : Ishak Mohammed Vs. Judge, Industrial Tribunal, Jaipur & Anr. : : Date of Order 7.7.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. B. L. Gupta for the petitioner. Mr. Arun Chaturvedi for the respondent No.2. Heard learned counsel for the parties. 2. This writ petition has been filed by petitioner- workman assailing the order passed by Industrial Tribunal dated 19.5.1994 by which application filed by respondent- RSRTC under Section 33 (2) (b) of Industrial Disputes Act, 1947 (for short “the Act”) seeking approval of removal of petitioner made on 17.12.1990, was allowed. 3. A charge-sheet was served upon petitioner on 25.8.1987 on allegation that he was on duty on 23.6.1987 and entrusted with responsibility of carrying defective vehicle 2 from Udaipur to Central Workshop, Ajmer. That vehicle was checked in route on 26.6.1987 at about 6:15 pm by Inspector of Nazirabagh. Nine passengers were found in the vehicle, who had no tickets. It was alleged that petitioner agreed to carry them in vehicle on the understanding that he would charge the fair at the end of journey. Besides the petitioner had no authority to carry the passengers in a vehicle, which was defective and without any conductor. Petitioner filed reply to aforesaid charge-sheet on 10.11.1987 denying the charges. Respondent appointed Enquiry Officer, who submitted his report recorded a finding of guilt against petitioner. On that basis, dismissal order was passed on 17.12.1990, which was the basis for the respondent to move approval application before the Industrial Tribunal under Section 33 (2) (b) of the Act. 4. Shri B. L. Gupta, learned counsel for the petitioner has argued that learned Industrial Tribunal did not satisfy itself about the fact that petitioner was at all paid the requisite salary of one month as provided for by Section 33 (2) (b) and that the amount of Rs.1520/-, which the respondent allegedly sent to the petitioner by money order did not represent the wages of full one month. It is 3 submitted that disciplinary enquiry was not held in conformity with principles of natural justice. The sole basis of disciplinary enquiry and the finding of guilt against petitioner was the log-book, on which remarks was made by Inspector. That document was not supplied to the petitioner alongwith charge-sheet. Learned Tribunal did not give any weightage to this argument that petitioner should have been supplied the log-book along with charge-sheet. Finding that it was mentioned in its enclosure is absolutely without any basis and in fact such finding of the Tribunal is based on conjectures and surmises so also the log-book was not supplied to petitioner. Learned counsel submitted that petitioner, who is semi literate person, has hardly had the opportunity to defend himself. The copy of proceedings of disciplinary enquiry have been placed on record and learned counsel sought to elaborate his argument with the help of such proceedings and submitted that in the first instances, when the notices (Annex.4) were issued by the Enquiry Officer, both parties were required to present themselves before him on 2.5.1988. That day however was declared as holiday, therefore, 1.6.1988 was notified as second date and summons were issued on 19.5.1988. Nothing was done on 1.6.1988 and 17.8.1988 was given as yet another date. On 4 that date since petitioner was sent on duty, 18.8.1990 was fixed as the date and the respondent had bounden duty convey to petitioner about that date. Immediately after petitioner returned from his duty as a bus conductor, he was asked to appear before the Enquriy Officer on 18.8.1990. Statement of complainant was recorded on that date. Petitioner was asked to cross-examine the witness produced by Corporation and it was recorded that petitioner did not want to produce witnesses on his defence and thus report submitted by Enquiry Officer proving guilt of the petitioner. Learned counsel submitted that petitioner categorically pleaded in his reply to application under Section 33 (2) (b) of the Act that during the arguments, he was not at all afforded opportunity to adduce evidence and that relevant document was not supplied to him and that so-called passengers, who were carried in the vehicle, were not examined as witnesses and that disciplinary enquiry was a mere eye wash. The learned Tribunal did not examine any of these aspects of the matter and did not hold anything about the fairness of enquiry. Learned counsel in support of his arguments relied on judgments of Supreme Court in Bharat Electronics Ltd. Vs. Industrial Tribunal, Karnataka, Bangalore & Anr. : 1990 SCC (2), 314, Lalla Ram Vs. D.C.M. Chemical Works Ltd. & anr. : 5 1978 SCC (3), 1, M/s Podar Mills Ltd Vs. Bhagwan Singh & Anr. : AIR 1973 Supreme Court, 2224 and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma & Ors. : 2002 (2) SCC, 244 and also Division Bench judgment of this Court in RSRTC & Anr Vs. Judge, Industrial Tribuanl & Anr. : RLR 1985, 80. 5. Per contra, Shri Arun Chaturvedi, learned counsel for the respondent No.2 opposed the writ petition and submitted that learned Industrial Tribunal has passed a perfectly legal order, which is not liable to be interfered by this Court. It is contended that mere statement that amount of Rs.1520/- did not represent wages of complete one month could not be taken as a basis to hold that Tribunal did not satisfy itself about such facts. It is submitted that Tribunal has rightly in para No.4 of the impugned order recorded a finding that petitioner-workman did not adduce any evidence to the contrary. How and in what manner this amount did not represent complete wages of one month, is not specified. The receipt of amount is on record. Learned counsel submitted that the Tribunal has recorded findings with regard to money order of that amount sent to petitioner and also the removal order and their receipts were on record 6 submitted alongwith application. That was sufficient compliance of Section 33 (2) (b) of the Act. The learned Tribunal also discussed the evidence and held that petitioner was afforded full opportunity to defend himself in the disciplinary enquiry. If the petitioner did not want to adduce any evidence on his behalf, he is to blame himself. As regards supply of copy of log-book and loog-sheet, this document was supplied to petitioner alongwith charge-sheet and reference of which was made in the list of enquiries referred to therein. Learned Tribunal held that petitioner did not express anything about non-receipt of this document before the Enquiry Officer; and secondly he also failed to show as to in what manner he was prejudiced by non-supply of documents. Learned counsel submitted that carrying passengers without ticket especially when petitioner had no authority to carry such passengers in a defective vehicle was a serious deficiency on the part of petitioner. The order of dismissal was just and proper. Learned counsel in support of his argument, relied on the judgment of this Court in RSRTC Vs. Vinod Kumar & Anr. : 2004 (5) WLC (Raj.), 131, judgment of Delhi High Court in Delhi Transport Corporation Vs. Ishwar Singh : 2005 (105) FLR, 820 and judgment of Kerla High Court in Vijayamohini Mills Vs. Industrial Tribunal 7 & Anr. : 1992 FJR (Vol.81), 223. 6. I have given my anxious consideration to the rival submissions and perused the material on record. 7. Perusal of impugned order passed by Industrial Tribunal approving dismissal of petitioner clearly indicates that although both the submissions made on behalf of petitioner-workman about non-receipt of amount of Rs.1520/- and insufficiency of that amount have been noticed by Tribunal, but they have not been accepted observing that respondent in their application have stated that amount of Rs.1520/- was sent to petitioner by money order and removal order was also sent separately by registered post on 19.12.1990, receipts whereof were on record submitted alongwith application. The Tribunal has not discussed as to when the amount of Rs.1520/- was received and what was the consequence of specific plea set up by petitioner that the amount of Rs.1520/- did not represent the complete wages of one month. The Tribunal has observed that it was for the petitioner-workman to adduce evidence showing that how and in what manner this amount did not represent the complete wages of one month. The judgments of Supreme 8 Court in Bharat Electronics Ltd. (supra) relied by learned counsel for the petitioner while interpreting proviso to Section 33 (2) (b) held that burden to prove that payment made to workman represented full wages of one month following the date of discharge or dismissal of the workman was on the management. In M/s Poddar Mills Ltd. (supra), Supreme Court held that Industrial Tribunal could not grant approval of action taken by management in absence of any satisfactory proof as to payment of one month’s wages to the dismissed employee. Division Bench of this Court in RSRTC Vs. Judge, Industrial Tribunal (supra), held that before an order of approval is passed, there must be proper application as envisaged in Section 33 (2) (b), proviso whereof laid down the conditions which were required to be fulfillment before grant of such approval, which is the payment of one month’s wages and making of application for approval should be simultaneous and part of same transaction for granting of approval. This view was expressed by Supreme Court in the judgment, relying by learned counsel for the petitioner, in M/s Poddar Mills (supra) and certain other judgments. As a question of fact, if the Tribunal would have called upon the management to prove as the amount of Rs.1520/- represented the full wages for one month, may be the 9 management would have been in position to prove such fact, but the Tribunal has completely gone wrong on the burden of proof by observing that workman was required to prove otherwise and until that was done the management could not be called upon to show that this was the amount of full one month wages. That approach taken by the Tribunal cannot be approved. 8. The Supreme Court in Lalla Rsm (surpa) held that : “In proceedings under section 33 (2) (b) the jurisdiction of Tribunal is confined to an enquiry as to, (a) whether a proper domestic enquiry in accordance with the relevant rules, Standing Orders and principles of natural justice has been held; (b) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (c) whether the employer had come to a bonafide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimize the employee regard being had to the settled position that though generally the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Industrial Tribunal is not required to consider the propriety 10 or adequacy of the punishment or whether it is excessive or too served, yet, an inference or mal fides may, in certain cases, be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (d) whether the employer had paid or offered to pay wages for one month to the employee; and (e) whether the employer has, simultaneously or within such reasonably short time as to form part of the same transaction, applied to the authority before which the industrial dispute is pending for approval of the action taken by him.” Apart from requirement of proving of the amount of one month wages was paid and simultaneously in application for seeking approval was made, the management was also required to adhere to the principles of natural justice in accordance with relevant rules and Standing Orders in the domestic enquiry based on which the order of dismissal was passed. On this aspect of the matter, the Tribunal has not appreciated arguments of the petitioner in true perspective. The Tribunal was first required to examine whether the petitioner was afforded reasonable opportunity to defend himself and whether the enquiry held against the petitioner was in conformity with principles of natural justice 11 and whether in the facts of the case when on one single day the enquiry proceedings were concluded, the petitioner was prejudiced by reason of not being provided opportunity to adduce his evidence or for non-supply of documents relied by respondent. On this aspect the order of Tribunal is rather based on conjectures and surmises and the findings thereabout recorded are not satisfactory findings. 9. Having regard to the facts of the case, the discussion aforesaid made, in my view the judgments relied by learned counsel for the respondents especially the Division Bench judgment in Vinod Kumar (supra) was rendered on its own facts where even though Tribunal did not find any irregularity or perversity in the enquiry and also recorded finding that wages for whole month was paid, but did not approve the dismissal on the premise that ticket less passengers, who have been carried, refused to take tickets. The Division Bench held that this could not be a reasonable ground to decline him to grant approval if the charge was proved by evidence on record. Order of Tribunal not approving dismissal was held unsustainable. Judgments of Delhi High Court in Delhi Transport Corporation (supra) and Kerla High Court in Vijayamohini Mills (supra) are also not 12 applicable to the facts of the present case. In view of discussions made above, the order of Tribunal cannot be sustained. The impugned order dated 19.5.1994 is set aside and the matter is remanded back to the Tribunal for deciding the application filed by respondent afresh in the light of discussions made above. The Tribunal in its discretion may adopt any course as may be advisable for dealing with such application and treating as if it was a fresh case and decide the application within a period of one year from the date copy of this judgment is supplied to Industrial Tribunal, Jaipur by any of the parties. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.H/12.