Judgment:
M.C. Jain, J.
1. This special appeal has been filed against the order of the learned single Judge dated December 16, 1991 by which he has summarily dismissed the writ petition filed by the petitioner-appellants for quashing the award dated May 29, 1989 (published on August 7, 1989) declaring the termination of the respondent Lal Chand as illegal and directing his reinstatement with full back wages. The facts of the case may be summarised thus.
2. On April 23, 1983, the respondent Lal Chand was appointed as a Conductor. On April 20, 1984, he was performing his duty on petitioner-appellants' bus No. 5694 going from Anopgarh (Sri Ganganagar) to Ferozpur (Punjab). In the way, it was checked by the Inspectors Jagat Narain Khatri and Sohan Singh Gill. They found that 58 passengers were travelling in it without tickets. They prepared necessary documents on the spot and got the signature of the Conductor Lal Chand on them. His services were terminated on April 21, 1984. Conductor Lal Chand took the matter before the Conciliation officer, Sri Ganganagar. A reference was made to the Labour Court, Bikaner under Section 10, Industrial Disputes Act, 1947 (hereinafter to be called 'the Act'). Respondent Lal Chand filed his claim Annexure-1. The petitioner-appellant filed their reply Annexure-3. Respondent Lal Chand filed his affidavit Annexure-4 and of his witness Prem Kumar Annexure-5 in its support. The petitioner-appellants cross-examined Lal Chand on his affidavit and produced the Inspector Jagat Narain MAW-1. They also moved application Annexure-6 for summoning; certain documents. After hearing the parties, the learned Labour Court, Bikaner held that the respondent Lal Chand has completed 240 days of service prior to his termination, the provisions of Section 25F of the Act were attracted and they had not been complied with before terminating his services, his termination dated April 21, 1984 was illegal and gave the award as said above. Writ Petition No. 385/90 was filed by the appellants and it was summarily dismissed by the learned Single Judge by his impugned order.
3. Learned Counsel for the petitioner-appellants contended that Lal Chand, Conductor, was appointed for specific period, his termination of the services was the result of non-renewal of the contract of employment, he did not even complete 240 days of service and provisions of Section 25F of the Act were not attracted in this case. He further contended that the learned Judge, Labour Court, Bikaner did not at all consider that it was well proved from the evidence produced before him that respondent Lal Chand did not issue tickets to 58 passengers despite obtaining fare from all of them and if he would have considered it he would have been satisfied that the order of termination was justified. He relied upon Delhi Cloth Milts v. Ludhbudh Singh (1972-I-LLJ-180) (SC) and Remington Rand of India Ltd. v. Tahir Ali Defi, (1975-II-LLJ-376) (SC).
4. In reply, it has been contended by learned counsel for the respondent Lal Chand that admittedly he (Lal Chand) was appointed on April 23, 1983, termination order was passed on April 21, 1984, there was no break in the service, he had completed more than 240 days of service before his termination and provisions of Section 25F of the Act have rightly been held applicable. He further contended that no domestic enquiry was held against Lal Chand, Conductor, by the petitioner-appellants and as such it cannot be said that he committed misconduct on April 20, 1984. He relied upon Cooper Engineering Ltd v. P.P. Mudhe, (1975-II-LLJ-379), Director Central State Farm v. Judge, Labour Court, Bikaner, WLR 1991 (S) Raj 180 and The Ganganagar Sugar Mills Employees Union, Sri Ganganagar v. The Management of the Ganganagar Sugar Mills Ltd., Sri Ganganagar 1981 WLN (UC) 4.
5. The learned Judge, Labour Court, Bikaner has categorically held that the petitioner joined-service on April 23, 1983, his service continued till April 21, 1984, and he had completed more than 240 days of continuous service before his service was terminated. This is a finding of fact. It is neither contrary to record nor it is perverse. As such the provisions of Section 25F of the Act were attracted. But that matter does not rest here.
6. The services of the respondent Lal Chand have been terminated on the ground of misconduct committed by him as a bus conductor by not issuing tickets to 58 passengers despite obtaining fare from all of them. This case was duly put forward by the petitioner-appellants in their reply to the claim petition. Lal Chand denied it in his affidavit and also in his cross-examination. The Inspector Jagat Narain was produced by the petitioner-appellants as MAW-1 and he stated on oath that the bus of the respondent Lal Chand was checked by him and Sohan Singh Gill on April 20, 1984, 58 passengers were not having tickets, all of them disclosed that they had paid the amounts of fare to the Conductor Lal Chand and the ticket had not been issued to them. This aspect of the case was not at all considered by the learned Judge, Labour Court, Bi-kaner. If the evidence would have been considered by him, he would have been satisfied that the order of termination was justified within the meaning of Section 11A of the Act. It has been observed in Delhi Cloth & General Mills Ltd. v. Ludbudh Singh (supra) para 60 sub-para 1 and 6 as follows:-
'60. From the above decisions the following principles broadly emerge:
(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
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(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it'.
It is clear from the above quoted observations that even if no domestic enquiry was held by the petitioner appellants they were entitled to straightway adduce evidence to prove the misconduct committed by Lal Chand Conductor. It may also be mentioned here that the petitioner-respondents moved application (Annexure-6) for summoning certain documents in order to justify the termination of Lal Chand. There is nothing on the record to indicate that an order was passed on this application. It is clear from the award Annexure-7 that this aspect of the case was not at all considered. On the contrary, it is clearly mentioned in para No. 9 of the award that this aspect has not been considered as no charge-sheet was served upon Lal Chand. On this ground alone, the award dated May 29, 1989 of the Labour Court, Bikaner and the order of the learned Single Judge dated December 16, 1991 deserve to be set aside.
7. Consequently, the special appeal is allowed. The order of the learned single Judge dated December 16, 1991 and the award of the learned Judge, Labour Court, Bikaner dated May 29, 1989 (Annexure-7) are set aside. The learned Judge, Labour Court, Bikaner will pass necessary order on the petitioner-appellants' application dated April 1, 1987 (Annexure-7), if not already passed, he will give the parties an opportunity to produce their evidence on the said misconduct and pass award after hearing the parties, keeping in view the observations of their lordships of the Supreme Court made in the above-quoted case. No order as to costs.