Shiv Singh Tyagi And Ors vs Judge Industrial Tribunal, Jaipur And Ors

Both the cross special appeals (writs); one being D.B. Civil Special Appeal (Writ) No.1643/2017 filed by the workman-Shiv Singh Tyagi ('the workman' for short) against the employer- Rajasthan State Road Transport Corporation Limited ('the employer' for short) and another being D.B. Civil Special Appeal No. 259/2018 filed by the employer against the workman, arise out of common order dated 23.08.2017 passed by the learned Single Judge. Hence, the same are being decided by this common judgment.

The brief facts culled out for our consideration are that workman was initially appointed as a Conductor in the employer on probation on daily wages basis vide order dated 26.07.1985. The allegation against the workman was that on 07.12.1985 while he was discharging his duties as a Conductor on Nagaur - Jaipur route, the Inspecting Team of the employer during the course of inspection found that he took the money from three passengers but he did not issue tickets to them as a result of which his services were dispensed with vide order dated 10.12.1985. Again the employee was engaged on daily wages basis vide order dated 01.07.1986. Further allegation against the employee was that on 07.10.1986 while he was discharging his duties as a Conductor on Ajmer - Nagaur route, the Inspecting Team of the employer during the course of inspection found that he took the money from three passengers but he did not issue tickets to them as a result of which his services were dispensed with vide order dated 09.10.1986.

Aggrieved by the order of termination, the workman filed reference before the learned Industrial Tribunal, Jaipur, which was dismissed vide award dated 02.04.1998. Against the impugned award the workman preferred writ petition before learned Single Judge. The learned Single Judge vide order dated 23.08.2017 set aside the order of removal of workman with consequential benefits and continuity of service. However, the workman was not granted the benefit of any back-wages.

Learned counsel for the workman argued that the learned Single Judge committed illegality in not considering that the employer did not make any application under section 33(2)(b) of the Industrial Disputes Act, 1947 ('the Act of 1947' for short) to seek approval of order of removal from service. Thus, the order of discharge or dismissal had never been passed. The learned Single Judge has erred in not granting back wages to the workman without any reason in violation of provisions of section 33(2)(b) of the Act of 1947.

Per-contra learned counsel appearing for the employer-RSRTC argued that the learned Single Judge while deciding the issue ignored the basic facts and law on the subject under section 33A and section 33(2)(b) of the Act of 1947. It is settled proposition of law that the workman was duty bound to prove the pendency of industrial dispute when the termination order was passed and in the present case the workman has not filed any document or reply or claim application which could prove the pendency of dispute. Learned counsel further argued that from the appointment order dated 01.07.1986, it is clear that the workman was a daily wager and conditions no. 3 and 4 thereof specifically proved for termination of service in the event of non- issuance of tickets or indulging into corrupt practice without issuing any notice. The learned Single Judge ignored that on the one hand the workman did not complete 240 days of service in a calendar year and on the other hand attracted the provisions of section 33(2)(b) of the Act of 1947, as no dispute with regard to the workman was pending for adjudication in the Labour Court. The learned Industrial Tribunal while dealing with the complaint filed under section 33A of the Act of 1947 clearly held the workman to be guilty of misconduct and rejected the complaint on merit.

While examining the award dated 02.04.1998, the learned Single Judge has come to the conclusion that the application under section 33-A of the Act of 1947, was moved wherein it was mentioned that the dispute I.T. 92/86 was pending between the Rajasthan State Roadways Employees Union and the employer - RSRTC at the time the order of removal was passed. It is contended that the application filed by the workman that the removal order was issued without conducting any enquiry, while other conductors, who were removed have been taken back on duty but the workman left out. It is also noted that the Industrial Tribunal while adjudicating the application under Section 33-A of the Act of 1947 has not examined the issue relating to Section 33(2)(b) of the Act of 1947 and has not adverted to this aspect at all whether approval was sought or not from the Industrial Tribunal before passing the impugned order of removal.

Indisputably, the service of the workman being a daily wager was discontinued vide order dated 09.10.1986 and the employer had never applied for seeking permission / approval of their action as contemplated under section 33(2)(b) of the Act of 1947.

Considering the nature of employment, the facts that the services of the workman were terminated way back on 09.10.1986 and more than 32 years have gone by since then, we are satisfied that ends of justice would be met in case the workman, instead of reinstatement with consequential benefits and continuity of service, is awarded a lump sum compensation of Rs.2,00,000/-. Ordered accordingly. In case the employer-RSRTC failing to pay the lump sum compensation within a period of three months, the workman would be entitled for interest at the rate of 6% per annum from the date of passing of the aforesaid Judgment on such amount. The award of the Labour Court as well as the order of the learned Single Judge is substituted by the aforesaid.

The special appeals accordingly stand disposed of. This also disposes of the stay applications and other applications, if any.