1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.418/96 Rajasthan State Road Transport Corporation vs. Rajendra Kumar & Anr. Date of order : 28/7/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.K. Verma for the petitioner. Shri V.L. Mathur for the respondent. ****** Heard learned counsel for the parties. This writ petition has been filed challenging the order dated 20.6.94 by which the application of the petitioner filed under Section 33(2)(b) of the Industrial Disputes Act, 1947 has been rejected and thereby the approval has not been granted for the removal of the respondent. Contention of the learned counsel for the petitioner is that apart from defending the matter on merits, the petitioner management had before the Industrial Tribunal also prayed that the enquiry against the respondent-workman is not acceptable to be fair and reasonable. It should be granted an opportunity to lead evident before the Industrial Tribunal itself so as to prove the charges but that 2 prayer was rejected on the ground that since no evidence whatsoever has been produced before the Enquiry Officer therefore the findings recorded are perverse and erroneous and that in these circumstances, there was no necessity for giving opportunity to the management to prove the charges before the Tribunal. Learned counsel has referred to various parts of the order passed by the Tribunal showing that apart from inadequacy or otherwise of the evidence, the Tribunal has also commented upon the procedure adopted by the enquiry officer and submitted that it should be evident from this finding that enquiry was not held to be fair and therefore the management ought to have been afforded the opportunity to prove the charges before the Tribunal. In support of his contentions, learned counsel relied on the judgement of Supreme Court in Amrit Vanaspati Co. Ltd. vs. Khem Chand & Anr.- (2006) 6 SCC 325. Shri V.L. Mathur, learned counsel appearing for the respondents opposed the writ petition and submitted that the Industrial Tribunal in the impugned order 3 has merely held that evidence that was adduced by the management before the enquiry officer did not prove the charge against the respondent-workman that accident took place due to rash and negligent driving and that no reasonable person of original prudence would have arrived at the finding which was referred to by the enquiry officer. In circumstances like this, there was no occasion for the Industrial Tribunal to permit the management to lead evidence because such a direction would be necessary only in cases the enquiry is held to be fair or where the principles of natural justice have not been properly followed. Upon hearing learned counsel for the parties and perusing the impugned order, I find that the learned Tribunal in para 4 of the order has observed that as many as 26 documents enclosed with the charge sheet furnished to the delinquent but none of those were exhibited by the management before the enquiry officer, nor were they produced before the enquiry officer. The Enquiry Officer has merely mentioned about such report which were otherwise available 4 and made inference upon the negligence of the petitioner. It is further been mentioned in para 5 that the respondent delinquent has given detailed reasons in reply to the charge sheet that the accident took place while he was trying to save the bicycle rider and that there was no negligence on his part. It has been mentioned that the explanation of the respondent-workman has not been properly considered and that the enquiry report has been procured merely on the basis of preliminary enquiry report submitted by the management. The procedure which has been adopted by the enquiry officer cannot be said to be proper. In para 6 of the impugned order also, similar observations were made that no evidence or otherwise were produced before the enquiry officer as per the procedure of law and the findings recorded by the enquiry officer are unreasonable and wrong. In totality of circumstances, it is discernible from the impugned order that the view otherwise taken by the Tribunal was that the removal was not made as per the procedure and that the documents and records 5 were not accepted in evidence as per the law and that the conclusions were based entirely on the material collected during the preliminary enquiry. In those circumstances, the view of the Tribunal that it was not necessary to provide opportunity to the management to adduce the evidence to the charges, cannot be sustained. In the result, the impugned order is set aside. The matter is remanded back to the Industrial Tribunal, Jaipur for giving opportunity to the petitioner-management for adducing evidence before the Tribunal itself to prove the charges and on that basis the Tribunal would be free to pass fresh order in accordance with law. Keeping in view the fact that termination of the respondent workman held way back in 1990 and this matter has remained pending for so long, the Tribunal is directed to expedite the proceedings in the matter and pass final order within one year after production of certified copy of this order before it. The writ petition is accordingly allowed. (MOHAMMAD RAFIQ), J. RS/