RAJASTHAN STATE ROAD TRANSPORT Vs. MADHOLAL

JUDGEMENT

(1.) THE Rajasthan State Road Transport Corporation (here -in -after referred to as the RSRTC) has come up in this writ petition against the order of the Industrial Tribunal dated 31.12.1998 (Annexure -1) with the prayer that it should be declared illegal.

(2.) THE respondent No. 1 was the conductor with the RSRTC. He was charge -sheeted in January 1988 and was found guilty of the misconduct. An order was passed for removal of respondent No. 1 on the basis of enquiry held by the petitioner but for the reason that a general reference was pending before the Industrial Tribunal and as required under Section 33(2)(b), the petitioner had moved an application for approval before terminating the services. While exercising powers under Section 33(2)(b), the Tribunal vide its order dated 4.4.1994 had declined the approval on the ground that the enquiry held against the respondent No. 1 was defective on technical grounds and, therefore, the approval was refused. The respondent was taken back in service and the enquiry was restarted against respondent No. 1 and once again the charges having been proved, the application for approval was moved before the Tribunal. The application of approval was opposed.

(3.) IT is settled law that if the enquiry is found to be defective, the employer has a right of seeking permission to establish the charges before the Tribunal itself and in that situation the Tribunal turns itself into the Enquiring Authority and on the evidence being led by the parties it can give its verdict about the charges and the punishment can also be imposed by the Tribunal or approval can be granted. But in case the employer does not move such an application and on approval having been declined, the employee is deemed to be continuing in service. The respondent No. 2 was taken back in service after declining of the approval on the first application but it is also settled law that the employer has a right to pass an order on the misconduct by way of holding fair inquiry i.e. The second enquiry in such circumstances is permissible as has been held by the Hon'ble Supreme Court in the case of Anand Narain Shukla v. State of Madhya Pradesh 1979 Lab. I.C. 1214, wherein the reversion of delinquent official was set aside on technical ground. It was held by the Supreme Court that the second inquiry on merits was permissible and the order of the reinstatement in between the period of reversion and second enquiry was of no relevance. If the second inquiry is held and the defect in the first enquiry is removed and a fresh order of removal is passed and because of pendency of reversion, the approval is once again sought, the Tribunal is bound to decide the approval application on its merit once again. It was wrong on the part of the Tribunal to say that the employer having failed to establish the charges by converting the Tribunal into Enquiring Authority, was estopped from moving a second application. It is open to the employer either to apply to the Tribunal if the enquiry is set aside on what -ever reasons and to establish the charges before the Tribunal itself or to reinstate the delinquent official and to establish the charges of misconduct by way of a fair inquiry; the effect of both would result in the same consequence and in case the employer after holding the enquiry again applies for approval, the Tribunal has no jurisdiction to say that the second application of approval was not maintainable. The Tribunal was bound to decide the second application of approval on its merits as required by law. As matter of fact it cannot be said that the application filed again after holding the enquiry is second application. After first enquiry proceedings were set aside and the management having held the enquiry proceedings once again, was bound under the law to ask for approval which statutory provision had been complied with by moving an application and the Tribunal was bound to decide the application on its own merits.