BHANDARI, J. - (1.) THIS writ petition is directed against the order passed by the Industrial Tribunal, Jaipur (for short `the learned Tribunal') on an application moved by the petitioner under the provisions of Section 33-A of the Industrial Disputes Act, 1947 (for short `the Act of 1947' ). By the impugned order dated 16. 2. 1999, learned Tribunal dismissed application of the petitioner.
(2.) THE petitioner-employee moved an application before the learned Tribunal under the provisions of Section 33-A of the Act of 1947. THE application was maintained on the ground that petitioner's services were terminated without seeking approval under the provisions of Section 33 (2) (b) of the Act of 1947. THE facts relevant to the matter as stated before the learned Tribunal are otherwise referred hereunder for convenience. The petitioner stated that pursuant to the selection, he was appointed on the post of Conductor vide order dated 6. 5. 1987. The order of appointment was containing certain terms and conditions and it was otherwise an appointment on daily wages basis. When the petitioner was discharging his duties on 4. 9. 1987. On checking of bus, it was found that certain passengers were travelling without ticket and accordingly remark was made in the Way-Bill. The services of the petitioner thereafter terminated vide order dated 7. 9. 1987 (Annexure-3 ). Challenge to the terminated order was made by moving an application under Section 33-A of the Act of 1947. It was stated that though the language of the order of termination shows it to be a case of termination simpliciter but order of termination is otherwise punitive in nature as foundation of the order is based on checking of bus on 4. 9. 1987. The order of termination was passed without holding an enquiry contrary to the standing order, and order of termination is to be treated as order of dismissal looking to the allegation but passed without holding an enquiry for providing an opportunity of hearing to the petitioner. According to the petitioner, foundation of the order of termination being a misconduct, thus in view of the provisions of Section 33 (2) (b) of the Act of 1947, approval of the learned Tribunal was required to be taken as petitioner was a concerned workman to a pending industrial dispute before the learned Tribunal. Since the order of termination was passed on the ground not connected with the aforesaid dispute, hence, the provisions of Section 33 (2) (b) of the Act of 1947 was attracted. However, learned Tribunal vide its impugned order held that it is a case of termination simpliciter, thus application under Section 33-A of the Act of 1947 is not maintainable and accordingly petitioner's application under Section 33-A of the Act of 1947 was rejected. Learned counsel for the petitioner submits that the learned Tribunal failed to consider that when a termination order proceeds after checking of bus, finding passengers without ticket, then termination cannot be held to be termination simpliciter. It is contended that foundation of the order of termination was based on alleged misconduct, therefore, without seeking approval under the provisions of Section 33 (2) (b) of the Act of 1947, the order of termination affected against the petitioner is not legally sustainable. It was urged that since there was violation of provisions of Section 32 (2) (b) of the Act of 1947, thus petitioner was entitled to maintain application under Section 33-A of the Act of 1947, but the said application was erroneously rejected by the learned Tribunal concerned. Learned counsel for the petitioner firstly placed reliance on the judgment of this Court in the case of Anoop Singh vs. Judge, Industrial Tribunal, Jaipur reported in 2008 (1) WLC 114 = RLW 2007 (4) Raj. 3532. Referring to the aforesaid judgment, it was submitted that if an order of termination is not held to be punitive as it was not stigmatic, then also there is a change in the service condition, hence, application under Section 33-A of the Act of 1947 was maintainable and accordingly, the case was remanded to the learned Court below. Reliance was also placed on a judgment of the Hon'ble Apex Court in the case of Gujarat Steel Tubes Ltd. vs. Gujarat Steel Tubes Mazdoor Sabha & Ors. reported in AIR 1980 SC 1896. In the aforesaid case, the Hon'ble Apex Court considered the fact that in what circumstances, an order of discharge can be considered to be simpliciter or punitive. After taking into consideration the facts of the aforesaid case, the Hon'ble Apex Court came to the conclusion that the order of termination was punitive as it was held that the language of termination order alone is not conclusive to hold that termination is simipliciter and not punitive in nature. It was held that if, on lifting the veil, it comes that the foundation of the order is a misconduct, then it has to be held to be a case of punitive order. Reference of the judgment of the Hon'ble Supreme Court in the case of V. P. Ahuja vs. State of Punjab & Ors. reported in (2000) 3 SCC 239 has also been made. In the aforesaid case, the Hon'ble Supreme Court had taken not of the fact that the order of termination itself was casting a stigma on the employee, hence, it was held that the termination is punitive in nature. In the case of Dipti Prakash Banerjee vs. S. N. Bose National Centre for Basic Sciences, Calcutta reported in AIR 1999 SC 983, it was held that termination is simpliciter or punitive, depends on whether allegations form is foundation for motive of the order. Taking note of the facts of the case wherein not only there were allegations even in the order of termination apart from a clear adverse findings by Director as well as by informal Inquiry Committee in a departmental inquiry, it was not considered to be a case of termination simpliciter.
(3.) IN the light of the aforesaid judgments, the contentions of learned counsel for the petitioner are many folds. Firstly, that order of termination in the present matter is punitive in nature, thus without holding an enquiry, if any, order of termination is passed, it has to be considered as illegal. The second contention is that treating the order of termination to be punitive, learned Tribunal should have entertained the application under the provisions of Section 33-A of the Act of 1947 as approval under the provisions of Section 33 (2) (b) of the Act of 1947 was not taken by the respondent Corporation, thus the order of termination should have been declared as void by accepting the application under Section 33-A of the Act of 1947. The application was otherwise also maintainable looking to change in condition of service. No other argument was raised by learned counsel for the petitioner during the course of arguments. Learned counsel for the respondents, on the other hand, submits that two contentions raised by learned counsel for the petitioner were well considered by learned Tribunal and a finding of fact was also recorded holding that the order of termination in the present case was not punitive but it was order of simpliciter and therefore, it being a case of termination simpliciter, the provisions of Section 33 (2) (b) of the Act of 1947 are not applicable, hence, the application so moved by the petitioner under Section 33-A of the Act of 1947 was rightly been held to be not maintainable, thus learned counsel for the respondents supports the order of the learned Tribunal. I have considered the rival submissions of the parties and scanned the matter carefully. ;