K. M. THAKER, J. –

The petitioner has brought under challenge the order dated 2-8-2004 passed by the Industrial Tribunal in Reference (I.T.) No. 148 of 2000 whereby the learned Tribunal has set aside the order passed by the Departmental Appellate Authority and directed the petitioner-Corporation to allow consequential benefit which may become available on account of the appellate authority's order having been set aside by the Court.

2. Aggrieved by the aforesaid order and direction the petitioner-Corporation has challenged the award contending, inter alia, that the impugned award has been passed disregarding relevant facts, the evidence available on record and the powers of the revisional authority conferred by virtue of the applicable regulations. Another important contention which is raised by the petitioner-Corporation is that because of the impugned award' the respondent would go scot-free and will not face any penalty, though the, charge of misconduct has been proved during the enquiry.

3. So far as the facts relevant for and involved in the petition are concerned, the petitioner has stated that the respondent was serving with• the petitioner-Corporation in the cader of driver. The respondent was on duty on 3-11-1991 on the State Transport bus bearing registration No. GJ IT 9468. When the said bus reached near Amod village the respondent driver took the bus towards wrong side which resulted into collision with the cyclist who was coming from the side of the factory. The accident resulted into death of the said cyclist.

4. It is also alleged that due to the said rash and negligent driving by the respondent one more accident had also occurred wherein one car bearing registration No. GSJ 6781 coming from the Bharuch and going to Ahmedabad was damaged.

5. In view of such rash and negligent driving by respondent driver, report was submitted on the basis of which charge-sheet No. 42 of 1992 was served. Full-fledged departmental inquiry was conducted wherein respondent was afforded reasonable and sufficient opportunity of hearing and defence. The respondent remained present through his representative and upon conclusion of the proceedings and evaluation of the evidence on record, the Inquiry Officer came to the conclusion that the charges were proved. The report of the Inquiry Officer was submitted to the disciplinary authority, who upon consideration of the report and the material on record, passed order dated 29-10-1994 and imposed penalty of stoppage of yearly increment for four years with permanent effect. The said order was taken in appeal before the departmental appellate authority, by the respondent. The appeal was rejected by the first appellate authority. Being aggrieved by the said order the respondent carried the matter into industrial dispute which came to be referred by way of the aforesaid Reference No. 148 of 2000. The reference was resisted by the Corporation by placing relevant facts and circumstances on record before the Tribunal. Subsequently, after hearing parties the Court passed the impugned award.

6. Mr. Munshaw, learned Advocate has appeared for the petitioner and Mr. Rathod, learned Advocate has appeared for the respondent. I have heard the parties and considered the record. In the facts and circumstances of the case, Rule. Mr. Rathod, learned Advocate waives service of notice of Rule on behalf of the respondent.

7. Mr. Munshaw, learned Advocate for the petitioner submitted that merely because any of the passengers were not examined as witness of the accident, it should not be concluded that the charge of rash and negligent, driving is not proved. He also submitted that in present case the learned Tribunal erred in concluding that charge was not proved, merely because any passenger or eye-witnesses was not examined before the Inquiry Officer. He also submitted that when the penalty imposed was short of dismissal or discharge the learned Tribunal ought not have interfered with the punishment order an