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CASE NO.: Appeal (civil)  1952 of 2003

PETITIONER: Rajasthan State Road Transport Corp.& Anr.                                       

RESPONDENT: Bhik Nath                                                     

DATE OF JUDGMENT: 14/02/2005

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

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,  

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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 \026  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,  Hyderabad & Ors. Vs.  B.Karunakar and Ors. [1993 (4)  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

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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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