1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4024/1993 RSRTC vs. The Judge, Industrial Tribunal Rajasthan & Ors. Date of order : 13/10/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.K. Verma for the petitioner. Shri Sandeep Saxena for the respondent. ****** The petitioner Rajasthan State Road Transport Corporation, Jaipur has challenged the order dated 27.11.1991 passed by Industrial Tribunal, Jaipur directing them to reinstate the respondent-workman in their employment with continuity in service and payment of a lump sum amount of Rs.5,000/- towards the back wages. The respondent-workman has filed the application under Section 33A of the Industrial Disputes Act, 1947 before the Industrial Tribunal on the premise that he was working with the petitioner as the Conductor and while he was on duty on Udaigarh to Banswara route, nine passengers boarded from bus stoppage 2 Thandala and not even half kilometer passed therefrom that the checking party of the Corporation intercepted the bus and on that basis the respondent-workman was removed from service. A reference pertaining to the respondent being I.T. Case No.92/86 was already pending adjudication before the Tribunal and therefore he could not be removed by the petitioner without approval of the Tribunal as per Section 33 (2)(b). Shri M.K. Verma, learned counsel for the petitioner has argued that the allegation against the respondent was serious one. In fact, he was found carrying 9 passengers without tickets. The learned Tribunal was therefore justified in directing the reinstatement of the respondent with continuity of service. It was argued that the Tribunal has erred in law in directing for payment of Rs.5,000/- as lump sum back wages. Even otherwise, the respondent did not complete 240 days in their service and 3 therefore the provisions of Section 25F of the Industrial Disputes Act were not violated. The order of the Tribunal therefore be quashed and set aside and the petitioner be held entitled to reinstatement. Shri Sandeep Saxena, learned counsel for the respondent opposed the writ petition and submitted that the respondent-workman has offered the valid explanation for non issuance of the tickets, in that, nine passengers boarded from the last bus stoppage Thandala and within half kilometers, the bus was intercepted and checked. No other charge of misconduct was proved against the respondent and that the penalty of removal was excessive. When already another industrial dispute was pending before the Tribunal for adjudication, the respondent could not dispense with the service of the petitioners without prior approval of the Tribunal. The order of removal was therefore nullity in law and 4 Tribunal was justified in directing reinstatement with continuity. Learned counsel for the respondent also produced for perusal of the Court copies of the orders recently issued by the Rajasthan State Road Transport Corporation dated 2.5.08, 23.5.08 and 21.6.08, which are taken on record. It was contended that the Corporation by its order dated 2.5.08 has taken a decision that in cases where the Conductors are found carrying upto five passengers without ticket, they shall be charged Rs.2,000/- as penalty per passenger and where the number of passengers is more than 5 and less than 10, they will be awarded the penalty of Rs.2,000/- for each of the passengers and also stoppage of one grade increment without cumulative effect and where the number of ticket less passengers exceeds 10 and is upto 15, apart from the aforesaid fine, they will be awarded stoppage of one grade increment with cumulative effect. This Circular has been 5 reiterated with partial modification by order dated 23.5.08 and by further order dated 21.6.08. It was argued that the respondent-workman has since been reinstated in service pursuant to the impugned award passed by the Industrial Tribunal and the respondent has produced on record copy of the order dated 8.12.1994 showing his reinstatement in service. Even since reinstatement, the respondent-workman is discharging his duties with the petitioner Corporation sincerely and there being no adversity reported against him. When the petitioners themselves have taken the policy of reinstatement of the Conductors and they have taken this policy decision on account of shortage of Conductors, case of the respondent-workman cannot be treated differently. Learned counsel for the petitioner has rejoined and submitted that earlier also once the respondent-workman was removed from the severe charge of carrying 10 6 passengers without tickets and then he was reappointed on 15.10.1985, but that was his first offence, he cannot be now granted any indulgence. Having heard the learned counsel for the parties and perused the award of the Industrial Tribunal, I find that the petitioner Corporation did not raise any plea, that alone prove, before the Tribunal the fact about any earlier misconduct of the respondent workman. The Tribunal in para 7 of the award has clearly observed that no previous misconduct on the part of the respondent workman was proved and also stated that the evidence has proved that the respondent workman was found in the process of issuing tickets to the passengers when the bus was checked by the checking party. In the present case though the respondent was removed on 4.10.1986, but the Labour Court by its award dated 27.11.1991 has directed for his reinstatement with continuity. The 7 order was passed five years after the date of removal but for this period only a sum of Rs.5,000/- was awarded as lump sum back wages. The respondent-workman has been reinstated by the petitioner Corporation which is evident from the order dated 8.12.1994 produced on record with the affidavit of the petitioners. Enquiry in the present case was found to be unfair by the Industrial Tribunal vide its order dated 27.11.1991. Nothing has been brought on record as to if any adversity was found against the respondent-workman during the last four years when he was actually discharging his duties on the said post. It is therefore not considered appropriate to interfere with the award passed by the Industrial Tribunal at this belated stage. However, in view of the policy Circulars issued by the respondents by which they decided to award penalties in cases where the passengers are found without tickets, it would be appropriate 8 that the liberty is granted to the petitioner to decide the case of the respondent workman according to such policy Circulars. A perusal of the aforesaid three Circulars does not indicate any impediment for deciding the past cases according to the said policy. In fact, the Circulars indicate that a decision was purposely taken for the past cases where the allegations of such similar nature are made against the Conductors and the petitioner Corporation was constrained to take such decision because of the paucity of number of Conductors. While therefore not interfering with the award of the Industrial Tribunal, I grant liberty to the petitioner Corporation to deal with the case of the respondent in accordance with the aforesaid Circulars and award him penalty as may be found befitting according to clause (2) of Circular dated 2.5.2008 and pass fresh order accordingly. 9 In the result, the writ petition is allowed in part and is disposed of in the terms indicated above. (MOHAMMAD RAFIQ), J. RS/