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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JAIPUR BENCH JAIPUR

ORDER

S.B.CIVIL WRIT PETITION NO.15615/2010

Chief Manager,

Rajasthan State Road Transport Corporation,

Vidhyadhar Nagar Depot, Jaipur

Versus

Sukhveer Singh (since deceased)

through his legal heirs and another

DATE OF ORDER --- December 21,2010

PRESENT

HON’BLE MR.JUSTICE PREM SHANKER ASOPA

Mr.Mukesh Kumar Verma, for the petitioner

Mr.Kailash Choudhary, for the resondent-Workman

REPORTABLE BY THE COURT

(1)

Heard learned counsel for the parties.

(2)

By this writ petition, the petitioner Management of the Rajasthan State

Road Transport Corporation (RSRTC) has challenged the impugned order

dated 1.4.2009 (Anx.6) passed by the Industrial Tribunal, Jaipur in Case

Misc.IT.161/1998 whereby the enquiry has been held to be unfair and further,

the charge sought to be proved by the petitioner Management before the

Industrial Tribunal was not allowed on account of the death of the respondent

Workman during the pendency of the case before the Industrial Tribunal and

consequently, the approval application u/s 33(2)(b) of the Industrial Disputes

Act, 1947 (in short `the Act of 1947') was rejected.

(3)

The facts, in brief of the case, are that while working as Driver in the

RSRTC, a charge sheet No.6657 dated 4.12.1996 was served upon the the

respondent Workman with the allegations that on 16.9.1996 at 6.30 Hrs. his

duty was on Route No.210-D but the petitioner remained absent without

intimation and permission which caused loss of revenue to the Management.

In addition to the aforesaid incident mentioned the charge sheet, on other

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occasions also, the respondent Workman remained absent without intimation

and without getting the leave sanctioned.

(4)

The Enquiry Officer found the charges proved and after giving an

opportunity of personal hearing to the respondent Workman, vide order

No.384 dated 17.6.1998 the services of the respondent Workman were

terminated and since connected reference was pending before the Industrial

Tribunal, therefore, approval application u/s 33(2)(b) of the Act of 1947 was

filed.

(5)

Submission of counsel for the petitioner Management is that the

Industrial Tribunal has wrongly held that the enquiry was unfair as the

respondent Workman was given full opportunity to produce his defence.

Further submission of the counsel for the petitioner Management is that even

if the workman died during the pendency of the reference application, then

also, the Industrial Tribunal could have allowed the petitioner Management to

prove the charge against the respondent Workman.

(6)

Submission of the counsel for the respondent Workman is that the

enquiry was rightly held to be unfair unfair in view of the judgment of this

Court in Rajesh Khanna V. The Rajasthan State Agriculture Marketing Board,

Jaipur (2002(2) WLC 464) wherein it has been held that it is for the

Management to lead evidence first and thereafter, on completion of the

departmental evidence, give an opportunity to the delinquent for production

of evidence. Calling the workman first to produce his defence evidence in

respect of the charges levelled against him, rendered the enquiry unfair as the

same would result in reasonable denial of opportunity to meet out the evidence

produced by the Management in support of the charges. In this particular

case, the above procedure has been violated, therefore, the same is violative of

the aforesaid part of the principles of natural justice. Counsel for the

respondent Workman has further placed reliance on the Division Bench

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judgment of this Court in Smt.Prem Kumari and others V. Central Industrial

Tribunal and others (1995(7) FLR 244) in which the principle has been laid

down that where the delinquent died, then the employer cannot seek to prove

charges against the workman.

(7)

I have gone through record of the writ petition and further considered

the a