ORISSA ROAD TRANSPORT COMPANY LTD. REPRESENTED BY THE GENERAL MANAGER Vs. KRUSHNA CHANDRA SAHU AND ANR.

JUDGEMENT

(1.) KRUSHNA Chandra Sahu (Opposite Party No. 1) was a bus conductor under the Orissa Road Transport Company Ltd. (Petitioner). On 23 -4 -1965 he was on duty in bus No. ORG 1497. The bus met with a break -down and a relief bus was sent to carry the passengers of the break down bus. Opposite party No. 1 submitted a refund way bill for Rs. 161.10 p. stating that some of the passengers were refunded their fare. He did not remit Rs. 5/ - from the way bills dated 19 -11 -1965. In respect of both these items proceedings were drawn up against opposite party No. 1 by the Assistant Transport Manager (Administration), Phulbani Zone. They enquiry was conducted by the Deputy General Manager. Opposite party No. 1 was found guilty. He was found to have misappropriated Rs. 161.10 p. on 23 -4 -1965 as he had falsely stated that the said sum had been refunded to the passengers. On 28th of December, 1966 the findings were accepted by the General Manager and notice to show -cause was issued to opposite party No. 1 to explain as to why he should not be discharged from service. Opposite party No. 1 filed his written statement and he was given a personal hearing by the General Manager. On 14 -3 -1967 the General Manager confirmed the findings of the Deputy General Manager and passed an order to discharge opposite party No. 1 from service. The Petitioner filed an application under Section 33(2) of the Industrial Disputes Act, 1947 (hereinafter to be referred to as the Act) for approval of the action taken. As the Petitioner did not pay one month 's wages, it made an application to withdraw the case. On 21 -12 -1967 the application for withdrawal was allowed by Annexure -1. On 29 -12 -1967, a fresh order of discharge (Annexure -2) was passed and an application under Section 33(2) of the Act was filed after complying with all the requisite formalities. On 13 -6 -1970 the Tribunal by its order (Annexure -3) dismissed the application for approval as not maintainable in law.

(2.) THE Tribunal (Opposite party No. 2) was of opinion that the order of its predecessor was contrary to law and the order allowing withdrawal was without jurisdiction on a reasoning that the order dated 21 -12 -1967 was one of disposal on merits. It came to the conclusion that the subsequent application was not maintainable in law.

(3.) THE Tribunal came to the conclusion that the order (Annexure -I) dated 21 -12 -1967 was without jurisdiction. This view is contrary to law. It is open to a party when it is aware of the legal position to withdraw the application filed for approval. Law does not prohibit such a step and it need not be positively so prescribed. It was therefore open to the Petitioner to withdraw the application under Section 33(2) of the Act when it was satisfied that the application for approval cannot be allowed as one month 's wages had not been paid. It was quite within the jurisdiction of the Tribunal to pass the order (Annexure -I) which is to the following effect :