1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4536/1995 Surja Ram vs. Judge, Industrial, Jaipur & Ors. Date of order : 9/4/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ None present for the parties. ****** This writ petition has been filed against the award dated 5.4.1995 whereby the application of the respondent RSRTC under Section 32A of the Industrial Disputes Act, 1947 was allowed and it was held that the order passed by the respondents on 17.7.1987 removing the petitioner from service was just and proper and that the petitioner was not entitled to any relief. The petitioner has challenged the aforesaid order on the ground that the only allegation against the petitioner was resale of tickets and that the allegation was not proved from the deposition of the witnesses who appeared on behalf of the respondents. It is contended that there were contradictions in what was stated by such witnesses. The respondents themselves did not hold any enquiry therefore the 2 Industrial Tribunal permitted the respondents to adduce evidence to prove the charges against the petitioner. Two witnesses namely Shri R.K. Agarwal and Shri Narain Singh appeared as witnesses on their behalf and petitioner submitted his own affidavit in defence. These witnesses described the allegation of re-sale of tickets whereas what was initially alleged by the respondents was that there was difference in the tickets. Both witnesses were Traffic Inspectors who were checking the bus at that time, besides that there was no iota of evidence to prove the allegations. It is further contended that the learned Industrial Tribunal has made out a new case for the respondents which was not even alleged by them. It has therefore acted beyond its jurisdiction in allowing the application under Section 33A. It is submitted that petitioner was earlier engaged with the respondents on 9.3.1987 but his services were terminated on 5.6.1987, therefore, the adverse marks with regard to his earlier period could not be taken into consideration by the learned Industrial 3 Tribunal as the subject delinquency was relating to the second appointment which was granted to the petitioner afresh on 30.6.1987 at Jhalawar. It was a new appointment and therefore remark given on 5.7.1987 was the first remark. The respondents have the policy of condoning first remark. Since the petitioner has already lost his seniority due to the break in the appointment, he could not be again penalised for the earlier delinquency as the same would amount to double jeopardy. Difference of tickets so allegedly sold by the petitioner is only Rs.15.50 and keeping the meagerness of the amount in consideration and the gravity of the charges proved, the punishment of removal would appear to be wholly disproportionate. The impugned order be therefore set aside. I have considered the aforesaid arguments in the light of what has been discussed by the Industrial Tribunal in the impugned order. A perusal of the impugned order would show that the petitioner was earlier engaged on 9.3.1987 as Conductor but when the bus at which he was deputed was 4 inspected on 30.5.1987, he was found to carry four passengers without ticket. He was engaged only on casual basis. His services were therefore terminated on 5.6.1987. He was then freshly engaged on 30.6.1987 in Jhalawar depot but when the bus in which he was deputed was again inspected on 5.7.1987, it was found that the tickets that were given to 15 passengers were of different and his services were again terminated on 17.7.1987. There was a general reference pending with regard to the employees of the respondents which concerned the petitioner as well. The respondents moved the application under Section 33A for approval of his removal. The Industrial Tribunal on evidence of the parties did not hold that the tickets which the petitioner issued to 15 passengers were used tickets or that it was a case of resale of tickets. What was held was that the petitioner charged fare from earlier bus stop and gave tickets from later stoppage amounted to serious delinquency on the part of the petitioner. Evidence of Shri R.K. Agarwal and Narain 5 Singh proved that at the time of checking, there were fifteen and half passengers in the bus who boarded from Dug but tickets were issued to them from the Bhadka bus stand which is located at a distance of 4-5 kms. from Dug and there was a difference of Rs.1/- in the amount of fare but the passengers stated that they had given full fare to the petitioner and accordingly the Inspectors made such remark in the way book. On that basis, the learned Industrial Tribunal held that the petitioner charged the fair from these passengers from Dug only whereas he gave them the tickets from a difference place therefore lesser amount of fare was to be charged and in this manner the petitioner retained the amount of difference. This exactly was the allegation of the respondents in their application under Section 33A which has been found proved by the learned Industrial Tribunal. It cannot be therefore said that the learned Tribunal has travelled beyond the scope of the application to hold that it was a case of resale of tickets or that different tickets were found with the passengers. In 6 fact, it was an attempt made by the petitioner himself to introduce a different case before the Industrial Tribunal to divert from the real issue involved and the Tribunal did not fall into that trap. Merely because the Tribunal has referred to earlier delinquency of the petitioner when he was removed on earlier occasion for carrying on four passengers without tickets, the impugned order would not be vitiated on that account because if that is a fact that the petitioner had got involved himself in a delinquency of this nature, the Tribunal was perfectly justified in taking even that into consideration while deciding the present application. I therefore do not find any merit in this writ petition. The writ petition is accordingly dismissed. A copy of this judgement be endorsed to the parties for intimation. (MOHAMMAD RAFIQ), J. RS/