Rajasthan
State Road Transport Corp. & Anr Vs. Bhik Nath [2005] Insc 100 (14 February 2005)
N. Santosh
Hegde & S.B. Sinha Santosh Hegde, J.
The
appellant by this appeal is challenging an order of the Division Bench of the
High Court of Judicature for Rajasthan at Jodhpur made in DBC Special Appeal
(Writ) No. 1184/97 whereby the High Court allowed the appeal filed by the
respondent workman herein setting aside the order of remand made by the learned
Single Judge of the said High Court, and confirming the award made by the Labour
Court, Jodhpur.
The
brief facts necessary for the disposal of this appeal are as follows:- The
respondent herein who was working as a conductor in the appellant - Corporation
was charged on two counts of non-issuance of tickets to passengers travelling
in the bus of which he was the conductor.
In a
departmental inquiry conducted, the Inquiry Officer came to the conclusion that
in both the instances the respondent did not issue tickets to the concerned
passengers. However, the explanation for non-issuance of tickets given by the
conductor was acceptable, hence, misconduct alleged against him was held to be
not proved.
The
Disciplinary Authority to whom the said report was submitted on consideration
of the same came to the contrary conclusion and disagreed with the Inquiry
Officer and held the misconduct alleged in regard to both the charges against
the respondent was established hence, imposed a punishment of termination.
The
above order of the Disciplinary Authority gave rise to a labour dispute No.
112/92 on the file of the Labour Court, Jodhpur.
Before
the Labour Court, both the parties consented that the Labour Court could decide
the case on the basis of evidence and material available on the file of the
domestic inquiry without seeking to adduce any additional evidence and on that
basis the Labour Court heard the arguments of the parties and examined the
evidence that was brought on record at the time of the departmental inquiry. It
also examined the order made by the Disciplinary Authority and after discussing
the evidence it came to the specific conclusion that the finding of the Inquiry
Officer that though the respondent had not issued tickets to certain
passengers, he had no intention to cause loss to the Corporation and the explanation
for non-issuance was justified, therefore, the respondent could not have been
found guilty of the misconduct charged against him. It incidentally also
recorded a finding that the Disciplinary Authority did not give an opportunity
to the respondent before reversing the finding of the inquiry officer and that
the order of the Disciplinary Authority was not a speaking order since it did
not contain adequate and suitable reasons for differing from the opinion of the
Inquiry Officer. In view of the above finding the Labour Court set aside the termination of the
services of the respondent workman holding it to be illegal and unjustified. It
also directed the appellant to reinstate the respondent in service with
continuity of service and full back wages from the date of dismissal from
service.
As
stated above the appellant preferred writ petition challenging the said award
before a learned Single Judge of the Rajasthan High Court who by a short order
setting aside the award of the Labour Court and remanded the same back to the
said court directing the said court to give opportunity to both the parties to
lead evidence, even though either of the parties had sought such a prayer.
Against
the said order of the learned Single Judge respondent preferred an appeal
before the Division Bench which after considering the material on record agreed
with the Labour Court that the misconduct alleged against
the respondent was not established and upheld the direction of the Labour Court in regard to reinstatement and arrears
of pay.
In
this appeal Shri Sushil Kumar Jain, learned counsel appearing for the appellant
firstly contended that when the finding of the Inquiry Officer as affirmed by
the Labour Court was that the respondent had not issued tickets in both the cases
in regard to which an inquiry was conducted the question of accepting the
explanation of the respondent why he did not issue the tickets to those
passengers does not arise because of certain circulars issued by the appellant Corporation
which creates a presumption that whenever a passenger is not issued ticket such
non-issuance shall be deemed to be with a view to defraud the Corporation. He
also contended that the finding of fact recorded by the Disciplinary Authority
reversing the finding of the Inquiry Officer could not have been interfered
with by the Labour
Court without
affording an opportunity to the appellant to lead evidence in support of its
charges. He nextly contended that the finding of the Labour Court that the Disciplinary Authority did
not afford an opportunity to the respondent before passing the order is
contrary to the judgment of this Court in Managing Director, ECIL, SCC 727].
We
have heard the learned counsel for the parties and perused the record. We are
of the opinion that on facts the contention of the learned counsel for the
appellant as well as finding of the learned Single Judge that no opportunity
was given to the appellant to lead evidence to prove its case of misconduct is
incorrect. When the matter was pending before the Labour Court no application was filed by the
appellant seeking permission to lead evidence.
On the
contrary when the Labour Court found difficulty in accepting the finding of the
Disciplinary Authority as to the guilty of the respondent the appellant as well
as respondent consented that the Labour Court could go into the merits and
demerits of the case on the basis of the material available on record and
decide the correctness of the finding of the Inquiry Officer as well as that of
the Disciplinary Authority.
This
concession is recorded in the following words of the Labour Court in its award:
"Both
the parties had given their consent to decide the case on the basis of evidence
and material available in the file of the domestic inquiry. I heard the arguments
of both the parties and perused the file carefully." In the background of
this concession and in the absence of seeking permission for leading evidence
in support of its charge by the appellant it cannot be now permitted to
question the procedure adopted by the Labour Court based on consent of the parties. Even the learned Single
Judge erred in wrongly recording a finding that the appellant was not given an
opportunity to lead evidence. As a matter of fact a perusal of the award
clearly shows that both the parties addressed arguments on merits and demerits
on the basis of evidence on record and after considering the same Labour Court
by a reasoned order agreed with the Inquiry Officer that though in the two
cases in regard to which an inquiry was conducted the respondent workman has
not issued tickets to 3 and 2 passengers respectively, the material on record
and explanation given by the respondent sufficiently proved that had good
reasons for not having issued the tickets when the checking staff came for checking
and the respondent workman had no intention of defrauding the Corporation. This
is a finding of fact based on material on record accepted by the Inquiry
Officer, the Labour Court and the Division Bench and we find no reason
whatsoever to differ from this finding. We are also of the opinion that since
the Labour Court had formed an opinion that
Disciplinary Authority had not properly considered the evidence on record while
coming to a contrary conclusion Labour Court was justified in going into the question of fact that too
as consented by the parties and giving a finding.
The
learned counsel for the appellant had referred to certain circulars which
according to him give rise certain presumptions as to misappropriation of the
funds of the Corporation by non-issuance of tickets, we have not been shown any
such circular. Be that as it may, assuming that there is such a circular which
at the most can give rise to a presumption and in the instant case for the
reasons already recorded by accepting the explanation given by the respondent
workman that presumption, if any, has been rebutted.
In
view of the above view taken by us the other argument urged by the learned
counsel for the appellant does not arise for consideration.
In
view of the above said we find no merit in this appeal and the same is
dismissed.
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