PREM SHANKER ASOPA, J. - (1.) HEARD learned counsel for the parties.
(2.) BY this Writ Petition, the petitioner Management of the Rajasthan State Road Transport Corporation (RSRTC) has challenged the impugned order dated April 1, 2009 (Anx.6) passed by the Industrial Tribunal, Jaipur in Case Misc. IT. 161/1998 whereby the enquiry has been held to be unfair and further, the charge sought to be proved by the petitioner Management before the Industrial Tribunal was not allowed on account of the death of the respondent Workman during the pendency of the case before the Industrial Tribunal and consequently, the approval application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (in short 'the Act of 1947') was rejected. The facts, in brief of the case, are that while working as Driver in the RSRTC, a charge sheet No. 6657 dated December 4,1996 was served upon the the respondent Workman with the allegations that on September 16,1996 at 6.30 hrs. his duty was on Route No. 210-D but the petitioner remained absent without intimation and permission which caused loss of revenue to the Management. In addition to the aforesaid incident mentioned in the charge sheet, on other occasions also, the respondent Workman remained absent without intimation and without getting the leave sanctioned. The Enquiry Officer found the charges proved and after giving an opportunity of personal hearing to the respondent Workman, vide order No. 384 dated June 17, 1998 the services of the respondent Workman were terminated and since connected reference was pending before the Industrial Tribunal, therefore, approval application under Section 33(2)(b) of the Act of 1947 was filed. Submission of counsel for the petitioner Management is that the Industrial Tribunal has wrongly held that the enquiry was unfair as the respondent Workman was given full opportunity to produce his defence. Further submission of the counsel for the petitioner Management is that even if the workman died during the pendency of the reference application, then also, the Industrial Tribunal could have allowed the petitioner Management to prove the charge against the respondent Workman. Submission of the counsel for the respondent Workman is that the enquiry was rightly held to be unfair in view of the judgment of this Court in Rajesh Khanna v. Rajasthan State Agriculture Marketing Board, Jaipur 2002 (2) WLC 464 : RLW 2002 (2) Raj 992 wherein it has been held that it is for the Management to lead evidence first and thereafter, on completion of the departmental evidence, give an opportunity to the delinquent for production of evidence. Calling the workman first to produce his defence evidence in respect of the charges levelled against him, rendered the enquiry unfair as the same would result in reasonable denial of opportunity to meet out the evidence produced by the Management in support of the charges. In the particular case, the above procedure has been violated, therefore, the same is violative of the aforesaid part of the principles of natural justice. Counsel for the respondent Workman has further placed reliance on the Division Bench judgment of this Court in Smt. Prem Kumari and Others v. Central Industrial Tribunal and Others 1995 (7)FLR244 in which the principle has been laid down that where the delinquent died, then the employer cannot seek to prove charges against the workman.
(3.) I have gone through record of the Writ Petition and further considered the aforesaid submissions of counsel for the parties. Before proceeding further, it is necessary to reproduce the relevant portion of the aforesaid judgments cited by counsel for the parties. Rajesh Khanna v. Rajasthan State Agriculture Marketing Board (supra). "9. The statutory rule prescribed that the statement shall be recorded in the presence of the delinquent official and he shall have an opportunity to cross examine the witnesses. In my opinion, in the present case the enquiry officer has not conducted the enquiry in accordance with the principles of natural justice except the witness of Bahadur Singh and S.P. Singh, no other witness has been allowed to be cross examined, nor there is any such note made by the enquiry officer of the proceedings which had been gone through thoroughly. The statement of Mandana, Gupta and Jain have been just placed on record. It is so borne out from the enquiry proceedings. From the totality of the facts and proceedings adopted by the enquiry officer, it cannot be said that the enquiry has been conducted in accordance with the prescribed procedure as provided under the statutory rule. The rules provide that the enquiry officer shall first record the evidence of the prosecution and shall afford an opportunity to the delinquent official to cross examine the witnesses of the prosecution. On the conclusion of the prosecution witness, the delinquent official is to be given an opportunity of producing his defence. In the present case, the enquiry officer even before recording evidence of the prosecution had recorded the statement of delinquent official. There is a force in the submission of the learned counsel for the petitioner that except two witnesses Bahadur and S.P.Singh, no opportunity was given to the petitioner to cross examine the prosecution witness who had been relied upon by the enquiry officer and thus whole of the enquiry proceedings become defective and are to be vitiated for being not having been conducted in accordance with law and in violation of principles of natural justice." (emphasis supplied) The same view has been taken by the Punjab and Haryana Nigh Court in its judgment dated May 8, 1963 in Associated Cement Co. Ltd. v. Workmen (Civil Appeal 636/1962) wherein it has been held that "it is necessary to emphasis that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him". ;