Partly allowed

Shri Haneef Khan v. Chief Manager Rsrtc and Anr.

Rajasthan HC12 Feb 2019SAW/310/2018

Case brief

AI extract

What is this about?

The High Court held that an order of termination deemed never passed when the employer failed to obtain statutory approval under Section 33(2)(B) of the Industrial Disputes Act. The appeal was partly allowed, ordering half back wages

What did the court decide?

The Single Judge's order modified to grant half back wages with 9% interest along with continuity of service for the intervening period.

Shri Haneef Khan Vs Chief Manager Rsrtc and… — Labour and Industrial Disputes | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN

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BENCH AT JAIPUR

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D.B. Special Appeal Writ No. 310/2018

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Shri Haneef Khan S/o Moda Khan, R/o Village Baldevwas, Tehsil Deeg, District Bharatpur, Raj.

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----Appellant

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Versus

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Chief Manager Of Rajasthan State Road Transport Corporation, Dausa Depot, Through Shri Satyavan Sangwan Officer-In-Charge.

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Judge Industrial Tribunal, Mini Secretariat, Bani Park, Jaipur.

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----Respondents

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Connected With

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D.B. Special Appeal Writ No. 819/2018

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Chief Manager Of Rajasthan State Road Transport Corporation, Dausa Depot, Through Shri Satyavan Sangwan Officer In Charge, At Present J.p. Nitharwal

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----Appellant

¶14

Versus

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Shri Haneef Khan S/o Moda Khan, R/o VillageBaldevwas, Teh.-Deeg, Distt- Bharatpur, Raj.

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Judge Industrial Tribunal, Mini Secretariat, Bani Park, Jaipur

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----Respondents

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For Appellant(s) : Mr. Suresh Kashyap appellant in SAW No.310/2018 and respondent in SAW No.819/2018 For Respondent(s) : Mr. Om Prakash Sheoran appellant in SAW No.819/2018 and respondent in SAW No. 310/2018

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

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Judgment

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Date of Reserve	::	January 25, 2019
Date of Pronouncement	::	February 12th, 2019

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(2 of 5)

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[SAW-310/2018]

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(Per: Hon’ble Bardhar, J)

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The controversy involved in both the appeals arise out of common order dated 27.11.2017, hence same are being decided by a common judgment.

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Brief facts of the case are that Haneef Khan (‘the workman’ for short) [appellant in SAW No.310/2018 and respondent No.1 in SAW No.819/2018] while serving with the Rajasthan State Road Transport Corporation (‘RSRTC’ for short) [respondent No.1 in SAW No.310/2018 and appellant in SAW No.819/2018] as a Conductor with the RSRTC, remained absent from duty w.e.f. 19.11.1998 continuously for which he was issued charge-sheet dated 22.02.1999. In the domestic enquiry conducted, the workman was found to be guilty of misconduct and was awarded punishment of termination of service vide order dated 04.10.2001. The RSRTC afterwards filed an application seeking approval of penalty of dismissal under section 33 (2)(B) of the Industrial Disputes Act, 1947 (‘the Act of 1947’ for short) before the Industrial Tribunal, Rajasthan, Jaipur (‘the learned Tribunal’ for short). Vide order dated 30.11.2010 the learned Tribunal dismissed the application after declaring the domestic enquiry as unfair. Aggrieved with the order dated 30.11.2010, the RSRTC filed writ petition before learned Single Judge. The learned Single judgment vide order dated 27.11.2017 disposed of the writ petition holding “that the workman would be treated to be in service and would be entitled for benefits of intervening period as if the order of dismissal had never been passed. However, the benefits of the intervening period i.e. from 04/10/2001 to 30.11.2010 i.e. the date of passing of order by the Tribunal, shall be calculated notionally and the actual payments shall be released

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(3 of 5)

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[SAW-310/2018]

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thereafter. The period of service shall be counted for the purpose of gratuity, pension etc. The above exercise was to be undertaken within a period of three months”. The workman and the RSRTC aggrieved with the impugned order have filed cross appeals.

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Learned counsel for the workman argued that the learned Single Judge while passing the impugned order dated 27.11.2017 ignored the factual aspect of the matter that once approval under section 33(2)(B) of the Act of 1947 was not granted to the RSRTC then the services of the workman shall be treated as having never been terminated. It is settled law that if an employee is ousted from service illegally, in that circumstance he is entitled for reinstatement with continuity of services alongwith full back-wages.

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In support of his submission, learned counsel for the workman has placed reliance upon following judgments:1. Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal & Ors., (2002) 2 SCC 244;

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Tata Iron & Steel Co. Ltd. Vs. S.N. Modak, Factory Journal Reports, Vol.XXVIII page 328; and

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Managing Director, Tamil Nadu State Transport Corporation vs. Neethivilangan, 2001(3) LLN 34;

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M/s. Pradeep Phosphates Limited Vs. Sankar Das & Anr., 2011 (131) FLR 18; and

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Remington Band of India Ltd. Vs. Thiru R. Jambulingam, 1974 I.C.1283.

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Learned counsel appearing for the RSRTC argued that the impugned order dated 27.11.2017 passed by the learned Single Judge while maintaining the order dated 30.11.2010 passed by learned Labour Court by which the learned Court rejected the application filed for approval of punishment under section 33(2) (B) of the Act of 1947 is perverse. The learned Single Judge while deciding the writ petition ignored the merits of the case and upheld the order passed by the learned tribunal in which it was

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(4 of 5)

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[SAW-310/2018]

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held that ‘in cases of absence from duty the punishment of dismissal shall not be provided’, thereby unsettling the law well settled on this count. There was no scope for the learned Tribunal to act as an appellate body and interfere with the findings of Disciplinary Authority unless the same were perverse or the punishment awarded was shocking in nature or were not based upon any evidence or were contrary to the evidence. However, in the present matter there was ample evidence against the delinquent employee and no procedural illegality was committed while conducting the departmental proceedings. The learned Single Judge erred in not recording the findings with regard to the merit of the case and also ignored the scope of the approval application under section 33(2)(B of the Act of 1947 as per which once the prima facie the evidence was available against the workman, there was no scope for interference. Therefore, the impugned order is perverse on this count alone.

¶40

Heard learned counsel for the parties, gone through the impugned order including the judgments cited by learned counsel for the workman and also scanned and scrutinized the entire material made available to us.

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Vide order dated 23.09.2005 the learned Industrial Tribunal, Jaipur, declared the inquiry as improper and unfair. After considering the material available on record, the learned Tribunal vide order dated 30.11.2010 rejected the application filed by the Corporation under section 33(2)(b) of the Act of 1947. The learned Tribunal further observed that the workman had fallen ill and the said information was given to the Corporation. As approval was not given to the employer Corporation under section 33(2)(b) of the Act of 1947, it will have to be deemed that the

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(5 of 5)

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[SAW-310/2018]

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order of dismissal or discharge has never been passed. Consequent of that, the employee would be deemed to have continued in service, entitling him to all the benefits available. This being the position and as held by the learned Single Judge that the workman would be treated to be in service and would be entitled for benefits of intervening period as if, the order of dismissal had never been passed. Thus, the termination order dated 04.10.2001 will have to be deemed effectless and the finding given by the learned Single Judge with regard to benefit of the intervening period i.e. from 04.10.2001 to 30.11.2010 i.e. of the order by the learned Tribunal, shall be calculated notionally, is not correct. In the above circumstances, the workman is entitled to regularization. As regards consequential benefits, in our view ends of justice would be met if he is paid half of the back wages with interest @ 9% per-annum.

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In the result, the appeal filed by the Corporation is without any substance and accordingly stands dismissed. However, the appeal filed by the workman is partly allowed and the order dated 27.11.2017 passed by the learned Single Judge is modified to the extent that the workman shall be entitled for half of the back wages by way of actual monetary benefits along with continuity of service for the intervening period from 04.10.2001 to 30.11.2010 with interest @ 9% per annum. The aforesaid exercise shall be carried by the Corporation within a period of three months from the date of receipt a certified copy of the Judgment.

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Registry to place a copy of this Judgment in the connected appeal.

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(GOVERDHAN BARDHAR),J

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(MOHAMMAD RAFIQ),J

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Sharma NK49-50

Shri Haneef Khan v. Chief Manager Rsrtc and Anr.

Case brief

What is this about?

What did the court decide?

Shri Haneef Khan v. Chief Manager Rsrtc and Anr.

Case brief

What is this about?

What did the court decide?

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