DBSAW NO.845/08. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R D.B. CIVIL SPECIAL APPEAL (WRIT) NO.845/2008. In S.B. CIVIL WRIT PETITION NO.1177/1999. The Divisional Manager RSRTC, Ajmer. Vs. Shri Gopal Prasad & Anr. Date of order:- 31 July, 2008. PRESENT HON'BLE THE CHIEF JUSTICE SHRI NARAYAN ROY HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Shri V.S. Yadav for the appellant. Shri M.F. Baig for the respondents. ***** BY THE COURT:- (Per Mohammad Rafiq, J.) This appeal is directed against the judgment dated 28/2/2008 passed by the learned Single Bench. In the writ petition, appellant challenged the order dated 19/8/1998 by which the Industrial Tribunal rejected their application filed under Section 33(2) (b) of the Industrial Disputes Act, 1947 (for short, the “Act of 1947”). The appellant filed the application before the Industrial Tribunal on the ground that respondent-workman Gopal Prasad, when he was Conductor in their bus on 19/1/1998 and 18/3/1988, was found by the checking party carrying passengers and luggage without tickets and, therefore, he was charge-sheeted under the RSRTC Workers and Workshop DBSAW NO.845/08. 2 Workers Standing Orders, 1965 (for short, the “Standing Orders”). The enquiry was held in which respondent-workman was found guilty of the charges therefore, the management of the RSRTC dismissed him from service vide order dated 19/4/1991. The application was therefore filed by the appellant before the Industrial Tribunal requesting approval for dismissal. Learned Industrial Tribunal rejected the application vide order dated 19/8/1998 thereby refusing to approve the dismissal order. 2) Shri V.S. Yadav, learned counsel for the appellant while assailing the order passed by the Industrial Tribunal as also the order of the learned Single Judge has argued that respondent-workman who was working as Conductor, was found carrying passengers and luggage without ticket in the bus, that was plying on Delhi-Nagour route on 18/3/1988, when the bus was checked by the checking party of Firozpur. Thereafter, the checking party issued tickets to such passengers and handed over the amount so collected from the passengers to the respondents. This according to Shri V.S. Yadav amounted to breach of trust and was a case of loss of faith. Learned Industrial Tribunal therefore was not justified in refusing to grant approval for the removal of the respondent-workman. Learned counsel argued that the enquiry against the respondent-workman was conducted in fair and impartial manner in which the respondent- workman was allowed to cross-examine the witnesses produced by the appellant and also produce his evidence in rebuttal. The enquiry officer considered DBSAW NO.845/08. 3 the documentary evidence as also statements of the witnesses produced and they found the charges proved. 3) Shri V.S. Yadav in this connection referred to the enquiry report to show that both the charges against the respondent-workman were found proved by the statement of Chandra Rupanil Jaidev, Traffic Inspector, the way bill, VCR and another document. Shri V.S. Yadav argued that the defence that was produced by the respondent-workman that he had lost the pen immediately after bus left from earlier stoppage was rightly not believed by the enquiry officer. Even otherwise, it cannot be said to be a case of no evidence or that the findings of the enquiry officer suffer from perversity or are otherwise erroneous. Learned Industrial Tribunal erred in law in refusing to approve the removal. The impugned-orders passed by the Industrial Tribunal and the judgment of the learned Single Judge are required to be set-aside. Shri V.S. Yadav in support of his contention relied on the Division Bench's judgment of this Court in Rajasthan State Road Transport Corporation Vs. Vinod Kumar Sharma & Anr. : 2004 (5) WLC (Raj.) 131 and judgments of Supreme Court in Central Bank of India Ltd. Vs. Prakash Chand Jain : AIR 1969 SC 983 and Karnataka State Road Transport Corporation Vs. B.S. Hullkatti : 2001 LLR 259. On the strength on the abovesaid judgments, learned counsel for the appellant argued that the Tribunal having held enquiry to be fair could not thereafter hold that the findings recorded by the enquiry officer are perverse and erroneous. DBSAW NO.845/08. 4 4) On the contrary, Shri M.F. Baig, learned counsel appearing on behalf of the respondent-workman has opposed the writ petition and has argued that the Industrial Tribunal has made elaborate discussion while examining the validity of dismissal of the appellant and has rightly refused to grant approval. Learned Tribunal also found that the findings recorded by the enquiry officer was perverse, erroneous and the workman was never informed about change of the enquiry officer. The evidence of the witnesses were recoded in his absence which prejudiced him. Immediately after the bus started from the last stoppage his pen was fell down and therefore he could not issue the tickets to the passengers and the bus was checked within one km. therefrom. Learned counsel further argued that what was proved against the respondent-workman was that he did not issue the ticket which fact he has explained but it was not proved against him that he had realised money from passengers. This fact is corroborated from the fact that the checking party realised the money from the passengers and issued tickets to them which money was given to the workman. Though, no passenger was produced to prove that the workman had charged money from them and yet they were made to pay the fair for second time. Learned counsel argued that application for approval of dismissal was dismissed by the Tribunal on 19/8/1988 but he has not been paid any consequential benefits so far. In support of his argument, he has placed reliance on the judgment of Supreme Court in T.N. State Transport Corporation Vs. Neethivilangan Kumbakonam : (2001) 9 DBSAW NO.845/08. 5 SCC 99 and has argued that it was held by the Supreme Court in that case that when the application of the management for approval of dismissal was rejected by the Tribunal on merits, dismissal order would then become non-est and the employer was bound to treat him as continuing in service with the right to receive all consequential benefits. 5) We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record and cited judgments. 6) The Tribunal on the basis of the evidence on record found that the bus was checked by the checking party immediately after it started from last stoppage at Moondva and within 1 km. the bus was stopped by the checking party. The defence of the workman is that after bus left from the last stoppage, his pen fell down and he could not immediately issue the tickets and at that very moment, the bus was checked by the checking party. Learned Tribunal on facts observed that the evidence proved that the respondent-workman could not merely collect money from passengers and for the luggage and these passengers had boarded from the last stoppage. It could not be inferred by the non- issuance of the tickets that the delinquent committed any act of dishonesty or theft, malafides or misappropriation of cash or property within the meaning of clause 13 of the Standing Orders of the Corporation. Such conduct could be inferred only if he had collected the money and yet would not have issued the tickets to the passengers. The defence that was DBSAW NO.845/08. 6 immediately at that very stage was put forth by the delinquent that he had dropped pen after the bus left from the last stoppage thus could not issue the tickets, could not be said to be totally unbelievable. Learned Tribunal also found that the bus checking report is said to have prepared on the spot but in column 14 therein, the checking party could not mention as to what irregularities were found and this column was left completely blank. Even column No.15 was also found blank. The bus checking report which was exhibited as P-2 did not contain the signatures of the delinquent. No other witness was examined to prove that charge. The learned Tribunal held that no reasonable prudent man could have arrived at the conclusions reached by the enquiry officer and based on such conclusions, the order of dismissal could not be justified. Findings recorded by the enquiry officer were thus found to be perverse. The judgments of the Supreme Court on which reliance is placed by the learned counsel for the appellant are therefore distinguishable on facts. At the same time, the judgment of the Supreme Court in T.N.State Transport Corporation Vs. Neethivilangan, Kumbakonam supra relied on by the learned counsel for the respondent- workman fully applies to the facts of the case wherein it was held that if application moved by the management for approval of the dismissal order is rejected by the Tribunal, the order terminating the services of the petitioner would become non-est and the employer would be bound to treat him as continuing in service with all consequential benefits. DBSAW NO.845/08. 7 7) In view of what has been discussed above, in our considered view, the learned Single Bench was justified in dismissing the writ petition relying on the judgment of the Supreme Court in Sadhana Lodh Vs. National Insurance Co.Ltd. and another : (2003) 3 SCC 524. We do not find any merit in this appeal and the same is accordingly dismissed. (MOHAMMAD RAFIQ), J. (NARAYAN ROY), CJ. anil